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North Shore Sav. & Loan Ass'n v. Griffin

OPINION FILED MAY 19, 1978.

NORTH SHORE SAVINGS AND LOAN ASSOCIATION ET AL., PLAINTIFFS-APPELLEES,

v.

TIMOTHY E. GRIFFIN, COMMISSIONER OF SAVINGS AND LOAN ASSOCIATIONS FOR THE STATE OF ILLINOIS, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Lake County; the Hon. ROBERT McQUEEN and the Hon. JOHN HUGHES, Judges, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

Plaintiffs, two savings and loan associations with offices in Waukegan, filed this action, seeking administrative review of a decision by Timothy E. Griffin, Commissioner of Savings and Loan Associations (hereinafter referred to as the Commissioner), allowing defendant First Financial Savings and Loan Association (hereinafter First Financial), to relocate its business office from Downers Grove to Waukegan. In their complaint plaintiffs ask that the Commissioner's decision be reversed for numerous reasons, including failure of First Financial to properly comply with the publication requirements of section 3-4(h) of the Illinois Savings and Loan Act (Ill. Rev. Stat. 1975, ch. 32, par. 744(h)). As a preliminary matter, plaintiffs presented a "motion for summary reversal" on the ground of improper publication. The trial court granted the motion, finding that publication of notices required by the Illinois Savings and Loan Act is governed by section 5 of "An Act to revise the law in relation to notices" (Ill. Rev. Stat. 1975, ch. 100, par. 5). The trial court vacated the Commissioner's decision and remanded the matter to the Commissioner to conduct new hearings after proper publication in accordance with section 5 (Ill. Rev. Stat. 1975, ch. 100, par. 5). Both First Financial and the Commissioner filed notices of appeal from that decision but only the Commissioner has filed a brief in this court.

Prior to oral arguments in this case plaintiffs filed a motion to enjoin certain other proceedings allegedly taking place before the Commissioner or, in the alternative, to dismiss the appeal as moot. We denied the motion for injunction but ordered that the motion to dismiss the appeal as moot be taken with the case. In their motion plaintiffs allege that First Financial has filed a new application seeking relocation from Downers Grove to Waukegan and has published the same in local newspapers within the counties involved. Plaintiffs urge that this is an acquiescence by defendants to the order of the circuit court and, therefore, that the matter is moot. Plaintiffs also argue that two separate and conflicting decisions on the merits of First Financial's attempt to relocate might eventually result.

The Commissioner replies first that the plaintiffs' motion is improper in that it is based on facts which do not appear in the record and is not supported by affidavit, as required by Supreme Court Rule 361(a) (Ill. Rev. Stat. 1975, ch. 110A, par. 361(a)). We agree with the Commissioner that plaintiffs' motion is not in proper form. Inasmuch as the question of mootness is important, and the Commissioner's objections to plaintiffs' motion do not contradict any of the alleged facts, we will consider the matter despite plaintiffs' failure to properly support their motion by affidavits.

The Commissioner takes the position that he did not acquiesce in the trial court's remand of proceedings to him because once the trial court reversed the Commissioner's order there was nothing to remand. The Commissioner further argues that it is his duty to process all applications filed with him in the normal course of business. He also urges that this appeal presents a heretofore undecided issue concerning the publication requirements of the Illinois Savings and Loan Act which is of substantial public interest and, further, that if we dismiss this appeal as moot the Commissioner might become involved in a situation which is capable of repetition but escapes review.

There is clearly merit to plaintiffs' arguments insofar as they apply to defendant, First Financial. Following the trial court's order herein, First Financial apparently voluntarily decided to abandon this particular proceeding and institute another proceeding following the rules as to publication laid down by the trial court. Inasmuch as defendant, First Financial, has also apparently voluntarily abandoned its appeal in this case, we do not find it necessary to rule on the question of mootness as it affects First Financial.

• 1, 2 The Commissioner's status in this appeal, however, is slightly different from First Financial's. In essence the Commissioner is defending his order which was, in part, based upon his interpretation of the applicable statutes. Plaintiffs herein have at all times found fault with both the Commissioner's ultimate order and the particular interpretation placed upon the statutes by him. Insofar as these parties are concerned, their positions on the issues herein remain essentially unchanged. What has changed is the factual context in which the issues were first presented to the court. We agree with the Commissioner's contention that his acceptance of and processing of a new application by First Financial does not constitute an acquiescence to the circuit court's order. It is also apparent to us that there is no real danger of two separate and conflicting decisions on the merits of First Financial's attempt to relocate. This case involves only the legal question of what is a proper publication. In deciding that question we would in no way be ruling on the ultimate merits of First Financial's first attempt to relocate. We are also of the opinion that the proper interpretation of the publication requirements of the Savings and Loan Act is a question of substantial interest not only to the Commissioner and the plaintiff associations, but also to all members of the general public. Further, we note that the question of what is a proper publication can arise in every case involving the relocation of a savings and loan association and that for this reason it would be highly desirable to have an authorative determination to guide the Commissioner in his decisions upon these applications. Therefore, because the issue presented herein is of substantial public interest, this case falls within the well-recognized exception to the general rule that a case which has become moot will be dismissed upon appeal. People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 104 N.E.2d 769; Wachta v. Pollution Control Board (1972), 8 Ill. App.3d 436, 289 N.E.2d 484; Partney v. Dallas (1969), 111 Ill. App.2d 261, 250 N.E.2d 166.

The substantive issue herein involves primarily the proper interpretation of section 3-4(h) of the Illinois Savings and Loan Act (Ill. Rev. Stat. 1975, ch. 32, par. 744(h)) which provides in relevant part:

"If a by-law amendment provides for a change in the location of an association's business office or the establishment of an additional office, the Commissioner shall not approve the amendment unless he finds that * * * (4) notice of the association's proposal to establish a new office has been published at least once both in the community of the proposed new location and in the community of the present location; * * *."

On April 7, 1976, the Commissioner issued a letter which interpreted this provision to mean:

"[T]hat notice published in any of the three Chicago daily newspapers (Tribune, Sun-Times or Daily News) is appropriate for relocation of facility sites located in the Chicago SMSA [consisting of Cook, Will, DuPage, Kane, McHenry and Lake counties]."

The Commissioner has maintained and applied his interpretation of the publication requirements at all times relevant herein.

Also relevant to the determination of the issue herein is the following definition appearing in section 1-10.17 of the Illinois Savings and Loan Act (Ill. Rev. Stat. 1975, ch. 32, par. 710.17) which provides in relevant part:

"`Publication,' `publish,' or `published': printed in the American language in a newspaper of general circulation published in the community in which the association's business office is located, or if no such newspaper exists in that ...


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