APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
The City of Chicago filed a complaint for declaratory judgment against the Illinois Commerce Commission and the commissioners thereof (defendants). The city raised the issue of legal validity of Rule 606 of General Order 138 promulgated by the commission. The theory of the complaint is that the defendants were without jurisdiction and lacked legal authority to require a municipality to maintain public utility facilities. The trial court entered judgment for plaintiff. Defendants appeal.
General Order 138, Revised, consists of rules and regulations concerning crossings of railroads and highways in Illinois. It provides guidelines for their construction and maintenance. On May 19, 1971, the commission adopted a resolution for revising and updating this order. Hearings concerning the resolution were concluded on February 13, 1973. The hearings were attended by the city and other interested parties. The resolution, as revised, was adopted on August 22, 1973. Rule 606 incorporated therein provides:
"On all overhead railroad structures having vertical clearance of less than 14' 6" clearance signs are to be furnished, installed, maintained and replaced by and at the expense of the public authority having the duty of maintaining the signs along the highway requiring such signs or as covered by agreement * * *. It shall be the duty of said public authority to determine the clearance to be indicated on said sign. Railroad companies may elect to do the actual work of installing, maintaining or replacing clearance signs."
The city did not apply to the commission for rehearing. The city did not appeal to the circuit court for administrative review. (See Ill. Rev. Stat. 1977, ch. 111 2/3, pars. 71 and 72.) Instead the city filed its complaint for declaratory judgment, as above described, on September 24, 1974.
In their brief in this court defendants contend the circuit court had no jurisdiction to consider the city's complaint because the city waived its right to judicial review of the commission's order; and that the commission had the authority to require the city to install and maintain clearance signs as described in Rule 606.
The city contends the rule as promulgated was void so that the city properly took its action directly to the circuit court instead of proceeding by administrative review. The city further contends the defendants were without jurisdiction to require local governments to perform acts designed to preserve and promote the safety of public utility operations.
It is undisputed that the city was a party to the proceedings before the commission which resulted in the promulgation of Rule 606 above quoted. Likewise it is clear that, as above shown, the city did not avail itself of the statutory machinery for judicial review of orders of the commission. The pertinent statute provides that, where no appeal is taken from the commission in such a situation, the parties affected by the order of the commission have waived the right to further review. The statute provides (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 72):
"When no appeal is taken from a rule, regulation, order or decision of the Commission, as herein provided, parties affected by such rule, regulation, order or decision, shall be deemed to have waived the right to have the merits of said controversy reviewed by a court and there shall be no trial of the merits of any controversy in which such rule, regulation, order or decision was made, by any court to which application may be made for a writ to enforce the same, or in any other judicial proceedings."
Predicated upon these arguments the commission urges it had complete jurisdiction for the entry of the order in question and the statutory provisions for review above quoted provide the exclusive method for judicial review. The commission therefore contends that it had jurisdiction over the parties and the subject matter so that the order in question was not void.
In effect, this argument is predicated upon the theory of exhaustion of remedies and takes the position that, since the city failed to exhaust its administrative remedies, the action of the city in the circuit court was tantamount to a collateral attack upon the commission's order. It is correct that the courts> of this jurisdiction have held that the administrative remedy is complete and exclusive and that orders of the Commission are not open to collateral attack. See Illini Coach Co. v. Illinois Commerce Com. (1951), 408 Ill. 104, 110-12, 96 N.E.2d 518, and Chicago North Shore & Milwaukee R.R. Co. v. City of Chicago (1928), 331 Ill. 360, 374-75, 163 N.E. 141.
In our opinion, the result of several more recent decisions has been to liberalize these rules and, under certain designated circumstances, to permit an alternative remedy of court procedure in addition to the statutory provisions for administrative review. In Landfill, Inc. v. Pollution Control Board (1978), 74 Ill.2d 541, 387 N.E.2d 258, the supreme court approved institution of an action for declaratory judgment after an administrative agency had acted and without the need of seeking judicial review of its decision. The supreme court pointed out the rationale for the doctrine of exhaustion of remedies and cited the various decisions which presently permit direct attack upon an administrative order without the necessity of seeking review under special circumstances delineated by the court. See Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill.2d 350, 358, 326 N.E.2d 737, and authorities there cited; Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill.2d 540, 548, 370 N.E.2d 223; Walker v. State Board of Elections (1976), 65 Ill.2d 543, 552, 359 N.E.2d 113.
In Landfill, Inc. v. Pollution Control Board (1978), 74 Ill.2d 541, 551, the supreme court used language which we regard as applicable to and decisive of this issue:
"We conclude that where an administrative body's assertion of jurisdiction is attacked on its face and in its entirety on the ground that it is not authorized by statute, exhaustion of administrative remedies and compliance with the Administrative Review Act is not required. Under these circumstances the judicial determination involves a question of law which will affect the jurisdiction of the administrative body in all cases and will hasten ...