APPEAL from the Circuit Court of Cook County; the Hon. CHARLES
R. BARRETT, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT AS MODIFIED, UPON DENIAL OF PETITION FOR REHEARING:
This is an appeal from an order permanently enjoining the Fair Employment Practices Commission (the Commission) from proceeding with public hearings on charges made against the City of Chicago (the City) for unfair employment practices. The City contends the Commission lost jurisdiction over the matter by failing to conduct a hearing within 60 days of the service of the complaint. The facts are essentially as follows.
On June 19, 1973, Susie Bates, a janitress employed by the City, filed a timely charge with the Commission against her employer. After the failure of efforts to settle or adjust, the Commission on July 30, 1973, within the 180-day period allowed for the Commission's action issued its complaint against the City, pursuant to section 8.01(a) of the Fair Employment Practices Act (Ill. Rev. Stat. 1973, ch. 48, par. 858.01(a)), which provides in pertinent part:
"In case of failure to settle or adjust any such charge by conference and conciliation in accordance with Section 8 of this Act, the Commission shall cause to be issued and served upon such respondent a written complaint, under oath or affirmation, stating the charge of unfair employment practice substantially as alleged in the charge theretofore filed with the Commission as hereinbefore provided in Section 8 of this Act and the relief sought on behalf of complainant and containing a notice of public hearing before a commissioner or a duly appointed hearing examiner at a place therein fixed, to be held not less than 20 nor more than 60 days after the service of such complaint." (Emphasis added.)
The complaint initially set September 7, 1973, as the date for the hearing, a period not less than 20 nor more than 60 days after the service.
Under section 8.01(b), *fn1 the City then had 30 days or, in this instance, until August 29, 1973 within which to file its answer or a motion to dismiss the complaint. On August 28, 1973, the City moved to dismiss the complaint and, alternatively, to continue the public hearing should its motion to dismiss be denied. On September 13, 1973, the hearing examiner denied the motion to dismiss; allowed the City 15 days within which to file its answer, as provided by section 8.01(b); and granted the motion to continue, rescheduling the public hearing for Tuesday, October 23, 1973.
On that date, 83 days after service of the complaint, a public hearing was convened. At the outset, the hearing examiner asked counsel for the City if there was any objection to the timeliness of the proceeding. Counsel replied that there was no objection, but later that same day he made an oral motion to dismiss the charge on the ground that the hearing was not held within the 60-day period following service of the complaint. The hearing examiner denied the motion and continued the hearing without date.
Thereafter, the hearing was rescheduled for December 10, 1973. In the interim, on November 20, 1973, the City filed a motion with the Commission to vacate the hearing examiner's denial of its motion to dismiss and prayed for an order dismissing the action on the ground of lack of jurisdiction. It contended that the language of section 8.01(a) was mandatory and required that a hearing be held not less than 20 nor more than 60 days after the service of the complaint.
On December 3, 1973, the Commission denied the City's motion to vacate. Two days later the City filed the instant action in the Circuit Court of Cook County praying for injunctive and declaratory relief, asserting that the Commission lacked jurisdiction because of failure to hold the hearing within 60 days of service of the complaint. There was a finding that the City's motion stated facts sufficient to warrant granting a temporary restraining order. Subsequently, the trial court (1) entered a permanent injunction against defendants from proceeding with the cause; (2) held that section 8.01(a) "is clearly negative and mandatory insofar as the time within which the Fair Employment Practices Commission must commence a public hearing"; (3) dismissed the complaint before the Commission; and (4) held that the Commission had lost jurisdiction of the case inasmuch as a hearing had not been held within 60 days of the service of the complaint, as required by the statute. The Commission brings this appeal from that order.
Initially, the Commission objects to the City's failure to exhaust its administrative remedies. As a general rule, such a failure would preclude relief; however, the exhaustion doctrine is not applied where there is an objection that the statute sought to be enforced is void on its face (Bright v. City of Evanston, 10 Ill.2d 178, 139 N.E.2d 270), or that an administrative agency has no power to proceed because it lacks jurisdiction (W.F. Hall Printing Co. v. Environmental Protection Agency, 16 Ill. App.3d 864, 306 N.E.2d 595; Horan v. Foley, 39 Ill. App.2d 458, 188 N.E.2d 877). Thus, in Horan, the objection was made that the Civil Service Board had lost jurisdiction to consider charges against an employee where the date set for hearing of the charges was beyond the statutorily required 30 days from the date of suspension. There, a motion to dismiss on that ground was denied by the Board. The Horan court held that a challenge to an agency's jurisdiction is an exception to the exhaustion doctrine, and it proceeded to determine the matter on the merits.
Likewise, the objection here is addressed to the jurisdiction of the Commission to proceed with the hearing. As such, it falls within the Horan exception to the exhaustion doctrine, and we therefore will consider the merits of the cause presented.
In this regard, the City contends that the language of section 8.01(a) is directed toward the period within which a hearing must be held and is not merely directory but mandatory. This construction is required, it argues, by the fact that the statute contains negative words which deny the exercise of the power after the time stated. In support thereof, it cites the following language from Carrigan v. Illinois Liquor Control Commission, 19 Ill.2d 230, 233, 166 N.E.2d 574:
"[W]here such statute contains negative words, denying the exercise of the power after the time named, or where a disregard of its provisions would injuriously affect public interests or ...