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Illinois Telephone Ass'n v. Commerce Com.

OPINION FILED FEBRUARY 17, 1978.

ILLINOIS TELEPHONE ASSOCIATION, PLAINTIFF-APPELLEE,

v.

ILLINOIS COMMERCE COMMISSION, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Sangamon County; the Hon. JOHN B. WRIGHT, Judge, presiding. MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 31, 1978.

In June 1974, the Illinois Commerce Commission (Commission), after hearings and deliberation, entered two general orders relating to the credit policies of gas, electric, water, and telephone companies in the State of Illinois. Prior to the issuance of these general orders, the Illinois Telephone Association (Association) filed a motion requesting separate hearings on telephone credit rules. That motion for separate hearings was denied and after the issuance of the general order, the Association filed an appeal in what we can refer to as the first circuit court proceeding. In that proceeding, the Association was successful in causing the order, apparently the entire order, to be vacated and the cause remanded to the Commission for further proceedings.

The basis of the circuit court action was that the order of the Commission was said to be deficient in that there were not sufficient findings of fact upon which to predicate the order. At the time of the first circuit court order, there was not before the circuit court a certified record of the proceedings had before the Commission. The judgment was apparently based upon the order alone and the apparent determination that it was facially deficient in its findings.

In any event, we pick up this continuing, rather technical, controversy at the point of remandment to the Commission and the issuance of a revised general order No. 172 relating to certain utilities with which we are not here concerned, and a separate general order No. 197 relating in substantial detail to the credit granting, bill collecting, and collection practices of telephone companies. The Association, on behalf of its 60 member companies, sought a rehearing before the Commission after the issuance of the revised order upon remand. That petition for rehearing was denied and the Association undertook to perfect an appeal under the applicable statutory provision to the circuit court of Sangamon County.

In the circuit court proceeding, the Association again filed a motion to set aside the order as revised upon remand, asserting that the order failed to make what is referred to as a mandatory findings of fact as allegedly required by the Public Utilities Act (Ill. Rev. Stat. 1975, ch. 111 2/3, par. 1 et seq.). The one-page motion simply recited that on October 23, 1974, the Illinois Commerce Commission entered an order on remand which failed to contain the mandatory findings of fact required by the Public Utilities Act as specifically ordered and directed by the circuit court. No other specification of deficiency is found in the motion itself, although there is appended to the motion an elaborate brief in support of the motion to set aside the order.

The Commission filed its motion to dismiss the appeal, alleging that the Association had failed to perfect its appeal as required by section 68 of the Public Utilities Act (Ill. Rev. Stat. 1975, ch. 111 2/3, par. 72). Ultimately, the circuit court, again without having a complete record, denied the motion to dismiss the appeal and granted the motion to vacate and set aside the order of the Commission as issued upon remandment.

That decision of the circuit court was appealed to this court, and we joined in this war of technicalities and filed an opinion holding that the Association, being an unincorporated association, lacked standing to appeal the order of the Commission (Illinois Telephone Association v. Commerce Com. (1976), 38 Ill. App.3d 740, 348 N.E.2d 490). The Illinois Supreme Court granted petition for leave to appeal, held that the unincorporated Association did have standing, reversed the decision of this court, and remanded the case to us for consideration of the remaining issues on appeal (Illinois Telephone Association v. Commerce Com. (1977), 67 Ill.2d 15, 364 N.E.2d 63). Those issues are (1) whether the circuit court lacked jurisdiction of the appeal because the failure of the issuance to file a complete record with the Commission, and (2) whether the order of the Commission may be set aside by a mere motion in the circuit court, and (3), and intertwined with 2, the issue of whether the circuit court erred in setting aside the order of the Commission for failure to make the findings of fact allegedly required by the statute.

The statutory scheme for appeals from the Commerce Commission to the judiciary is found in section 68 (Ill. Rev. Stat. 1975, ch. 111 2/3, par. 72), and generally it is there provided that within 30 days after the service of any order or decision of the Commission refusing an application for rehearing of any rule, regulation, etc., any person affected by such decision may appeal to the circuit court by filing a notice of appeal as there provided. After the filing of the notice of appeal, the Commission is required, within five days, to file with the clerk of the circuit court to which such appeal is taken, a certified copy of the order appealed. Within 20 days thereafter, the statute places the burden upon the appealing party to furnish to the Commission either a copy of the transcript of the evidence, including the exhibits, or it provides the parties may enter into a stipulation with reference to narrowing the issue on appeal. The record thus accumulated is required to be certified by the Commission and filed with the circuit court. The appeal thereafter proceeds in the circuit court upon that record.

In this case, the Association apparently neglected to supply the Commission with all of the exhibits applicable to the general rule and, ironically, apparently the missing exhibits relate to matters other than general order No. 197. In any event, because of this deficiency, the Commission did not file the complete record, and without a complete record the trial court determined the order to be facially deficient, had no record to refer to to otherwise ascertain the validity of the order, and thus entered an order vacating a general order of the Illinois Commerce Commission.

The motion of the Commission to dismiss the appeal, like the motion of the Association to vacate the order, was lacking in specificity. There is no contention that the omitted exhibits pertained to the issues upon this appeal, and there is in fact no contention that the alleged missing findings are in any way relevant to the issues in the general order.

• 1 It is true that appeals from orders of the Commission are purely statutory. We are not persuaded, however, that an appeal from the order of the Commission should be frustrated upon irrelevant issues and points of procedure. We see no reason why any step in the perfection of an appeal from an order or decision, rule or determination, by the Commission should have to be pursued with more exactitude than an appeal from an order of the circuit court. The appeal is initiated by the timely filing of the notice of appeal. We find no logical or statutory reason why any other step should be determined to be jurisdictional.

• 2, 3 The Commission's contention that an appeal can be, and would be, aborted by the Commission's determination not to file the record on appeal for some minor deficiency as to an exhibit is untenable. Clearly the legislature did not intend to provide so simple a device to frustrate appeals from the Commission. In State Public Utilities Com. v. City of DeKalb (1918), 283 Ill. 443, 119 N.E. 423, the court noted that circuit courts had jurisdiction to deny motions to dismiss an appeal and affirmed a judgment of contempt against the chairman of the Commission for failure to comply with an order to file a transcript. The supreme court there said:

"Jurisdiction was conferred on the circuit court of Sangamon county to hear and determine the matters to be submitted for its decision by that appeal when a copy of the notice of the appeal, with proof of service thereof, was filed with the clerk of said court" 283 Ill. 443, 446, 119 N.E. 423.

We conclude that the trial court upon the existing authority quite properly denied the motion by the ...


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