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Summers v. Commerce Com.

OPINION FILED APRIL 7, 1978.

DAVID A. SUMMERS ET AL., PLAINTIFFS-APPELLANTS,

v.

ILLINOIS COMMERCE COMMISSION ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Coles County; the Hon. WILLIAM J. SUNDERMAN, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

We have here a question of when notice is perfected.

If it is the date on the document giving such notice, 31 days have run — no appeal.

If it is the date of receipt of the notice, 25 days only have elapsed — an appeal will lie.

Succinctly put, the Illinois Commerce Commission granted Central Illinois Public Service's application for a certificate of public convenience and necessity to construct a transmission line and then denied the intervening plaintiffs' petition for a rehearing. Notice of this denial was given the plaintiffs in a certificate of commission action dated December 13, 1976. On January 13, 1977-31 days after the date of the certificate — plaintiffs filed a notice of appeal in Coles County Circuit Court.

The appeal was dismissed as untimely.

We affirm.

The Public Utilities Act (Ill. Rev. Stat. 1975, ch. 111 2/3, par. 72) provides that a person may appeal within 30 days after the service of any order of the ICC refusing an application for a rehearing. If service of a Commission order is by mail, "mailing in the United States mail * * * shall constitute service, without additional proof of a receipt of said certified copy or copies of said order." (Emphasis added.) Ill. Rev. Stat. 1975, ch. 111 2/3, par. 70.

But — plaintiffs contend — according to Supreme Court Rule 12(c) (Ill. Rev. Stat. 1975, ch. 110A, par. 12(c)), "service by mail is complete four days after mailing." (Emphasis added.)

• 1 The courts> have uniformly held that appeals from the Illinois Commerce Commission are purely statutory and must be prosecuted according to statutory requirements to be legally effective. (Village of Waynesville v. Pennsylvania R.R. Co. (1933), 354 Ill. 318, 188 N.E. 482; Private Tele-Communications, Inc. v. Illinois Bell Telephone Co. (1975), 31 Ill. App.3d 887, 335 N.E.2d 110.) Traditionally, the notice requirement for appeals from ICC orders have been strictly construed. Prairie Vista, Inc. v. Central Illinois Light Co. (1976), 37 Ill. App.3d 909, 346 N.E.2d 72.

• 2 And since an appeal from a Commerce Commission order is an action governed by special statute (Toledo, Peoria & Western R.R. v. Illinois Commerce Com. (1940), 375 Ill. 35, 31 N.E.2d 293), the more general rules of the Supreme Court are not controlling. Moreover, Rule 12 quite expressly limits itself to proof of service in the trial and reviewing courts>. This limited applicability of Rule 12(c) was noted in Fletcher v. Civil Service Com. (1972), 6 Ill. App.3d 593, 286 N.E.2d 130, which concerned the Civil Service Commission's service of notice under the Administrative Review Act. There the court stated:

"Rule 12 does not pretend to establish a universal standard necessarily to be followed in all cases in which a notice must be given and it has no application to proof of service of notice required to be given by a civil service commission." (6 Ill. App.3d 593, 596, 286 N.E.2d 130, 133.)

Since the plaintiffs did not file their notice of appeal within 30 days of the mailing of the certificate of commission action as required by the controlling statute, the circuit court properly dismissed plaintiffs' appeal.

• 3 Plaintiffs next claim that a finding that service is complete upon mailing violates their constitutional right to due process and equal protection. Although there is no set standard for what notice comports with due process (Bellingham Bay Improvement Co. v. City of New Whatcom (1899), 172 U.S. 314, 43 L.Ed. 460, 19 S.Ct. 205), it is clear that a party must be given reasonable notice and a fair opportunity to appear and defend on the merits. (People ex rel. Loeser v. Loeser (1972), 51 Ill.2d 567, 283 N.E.2d 884; Grover v. Franks (1975), 27 Ill. App.3d 900, 327 N.E.2d 71.) In the present case there is no question plaintiffs received notice. This is acknowledged. It is their position that although they did not have 30 days, they did have 25 days' ...


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