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

OPINION FILED MARCH 20, 1979.

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

v.

TIMOTHY E. GRIFFIN, COMMISSIONER OF SAVINGS AND LOAN ASSOCIATIONS, ET AL. — (TIMOTHY E. GRIFFIN, APPELLANT.)



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Lake County, the Hons. Robert McQueen and John Hughes, Judges, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

In May 1976, defendant First Financial Savings and Loan Association (hereinafter First Financial) filed an application with defendant Timothy E. Griffin, Commissioner of Savings and Loan Associations for the State of Illinois (hereinafter Commissioner), seeking permission to relocate its business office from Downers Grove to Waukegan. Notice of First Financial's application for relocation was published in the May 26, 1976, edition of the Chicago Daily News. Plaintiffs, two savings and loan associations with offices in Waukegan, filed written objections to the proposed relocation with the Commissioner. Following proceedings before a hearing officer for the Commissioner, First Financial's application was formally approved on December 15, 1976.

Plaintiffs filed this action in the Lake County circuit court seeking administrative review of the Commissioner's decision. The trial court, in response to plaintiff's motion for summary reversal, held that First Financial had not given proper notice of its application for relocation. The court vacated the decision of the Commissioner and remanded the matter with instructions to conduct new hearings following proper notice. The appellate court affirmed. (60 Ill. App.3d 313.) We granted the Commissioner's petition for leave to appeal.

The Illinois Savings and Loan Act (Ill. Rev. Stat. 1975, ch. 32, par. 701 et seq.) provides explicitly for publication of notice where a savings and loan association contemplates relocation of its business office:

"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; * * *." (Ill. Rev. Stat. 1975, ch. 32, par. 744(h).)

Section 1-10.17 of the Act defines "published" as follows:

"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 community, then in the county in which such business office is located." Ill. Rev. Stat. 1975, ch. 32, par. 710.17.

The notice requirement of the Illinois Savings and Loan Act is virtually identical to the general statutory notice provision in section 5 of "An Act to revise the law in relation to notices" (Ill. Rev. Stat. 1975, ch. 100, par. 5), which provides:

"When any notice is required by law or contract to be published in a newspaper (unless otherwise expressly provided in the contract), it shall be intended to be in a secular newspaper of general circulation, published in the city, town or county, or some newspaper specially authorized by law to publish legal notices, in the city, town, or county."

Although both the trial court and the appellate court relied on this general notice provision, we think it more appropriate to base a decision on an interpretation of the Illinois Savings and Loan Act notice provision, which is more directly at issue.

The primary question which must be addressed by this court is whether the notice that First Financial placed in the Chicago Daily News satisfies the requirements set forth in the Illinois Savings and Loan Act. Resolution of this issue will turn upon our interpretation of the phrase "a newspaper of general circulation published in the community * * *" found in section 1-10.17 of the Act (Ill. Rev. Stat. 1975, ch. 32, par. 710.17). In Polzin v. Rand, McNally & Co. (1911), 250 Ill. 561, this court defined a newspaper of general circulation as one which "circulates among all classes and is not confined to a particular class or calling in the community." 250 Ill. 561, 575.) Therefore, the more precise issue confronting us is the meaning of the phrase "published in the community" within the context of the Illinois Savings and Loan Act.

On April 7, 1976, the Commissioner advised all Illinois savings and loan associations "that 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, Du Page, Kane, McHenry and Lake counties]." While an administrative interpretation is often helpful in determining legislative intent (Adams v. Jewel Companies, Inc. (1976), 63 Ill.2d 336, 344-45), it obviously is not binding if erroneous (Martin Oil Service, Inc. v. Department of Revenue (1971), 49 Ill.2d 260, 269). Based on our recent interpretation of a similar statutory notice provision in Garcia v. Tully (1978), 72 Ill.2d 1, we believe the Commissioner's statutory construction was erroneous.

Garcia is the most recent in a series of cases decided by this court dealing with the proper interpretation of the statutory language "a newspaper of general circulation published" in the community, city, district, etc. Prior to Garcia there was not total unanimity regarding the precise nature of this notice requirement, which is found in several Illinois statutes. (Compare Polzin v. Rand, McNally & Co. (1911), 250 Ill. 561, and People ex rel. O'Connell v. Read (1912), 256 Ill. 408, with People ex rel. City of Chicago Heights v. Richton (1969), 43 Ill.2d 267, and Perkins v. Board of County Commissioners (1916), 271 Ill. 449.) In Garcia, we considered the publication requirement of section 104 of the Revenue Act of 1939 (Ill. Rev. Stat. 1975, ch. 120, par. 585), which provides, in part, that township tax-assessment lists shall be published in a newspaper of general circulation published in the township. Relying on Polzin and O'Connell we held that "simultaneous circulation of [defendant's] newspapers in the townships involved does not serve to make them newspapers published within the township within the contemplation of section 104." (72 Ill.2d 1, 14.) In reaching this decision, the court quoted from Polzin:

"If it had been intended that publication in a newspaper of `general circulation' in the district should be a compliance with the law, the legislature would not have required that the publication be made not only in a newspaper of general circulation in the district, but also in a newspaper `published' in the district. By the word `published' is clearly meant the place where ...


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