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City of Peoria v. Illinois Commerce Com.

OPINION FILED AUGUST 17, 1982.

THE CITY OF PEORIA, PLAINTIFF-APPELLANT,

v.

THE ILLINOIS COMMERCE COMMISSION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Peoria County; the Hon. Charles M. Wilson, Judge, presiding.

JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of the circuit court of Peoria County dismissing the appeal of the City of Peoria from an order of the Illinois Commerce Commission. The judgment of the trial court held the notice of appeal was untimely filed.

In its motion to dismiss the appeal the Commission argued that the provisions of section 68 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 111 2/3, par. 72) governing review were not followed in two respects. First, notice of the appeal which was given to the Commission, although mailed within 30 days of the Commission order, was not received by the Commission until after 30 days of such order and second, the notice of appeal filed in the circuit court was not filed within 30 days from the order and in fact filed with the court on the 34th day after such order.

On December 27, 1979, the Illinois Commerce Commission issued its General Order 207 dealing with emergency telephone number 911. The City of Peoria petitioned for rehearing or reconsideration, which petition was granted. Notice and a copy of the "ORDER ON RECONSIDERATION" was mailed to the attorneys for the City of Peoria on July 23, 1980.

On August 22, 1980, "NOTICE OF APPEAL" together with proof of service was deposited in the United States mail with postage prepaid and addressed to the secretary of the Illinois Commerce Commission. Said notice was file stamped by the Illinois Commerce Commission August 25, 1980. A copy of the notice of appeal and proof of service were filed with the circuit clerk by the City of Peoria on August 26, 1980.

The procedures for reviewing a decision of the Illinois Commerce Commission are found in section 68 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 111 2/3, par. 72). Such section provides initially that within 30 days any person or corporation affected by a rule or order of the Commission may appeal to the circuit court of the county in which the subject matter of the order is located. Further, the section provides the party seeking review shall serve a notice of appeal on the Commission and, finally, the party seeking review shall file a copy of the notice of appeal together with proof of service on the Commission in the circuit court within five days from service of notice on the Commission.

The issues as disclosed by the motion to dismiss the appeal and presented on this appeal are based on the Commission's allegation the City neither served a notice of the appeal on the Commission within 30 days of the decision nor filed a notice of appeal in the circuit court within 30 days from the decision. The factual basis underlying the dispute is uncontradicted. With respect to the first, the City mailed the notice of appeal to the secretary of the Commission on the 30th day following the decision, but the notice was not received by the Commission until more than 30 days had elapsed from the date of the decision. With respect to the second reason from dismissing the appeal in the trial court, the notice of appeal was not filed in the trial court until the 34th day following the decision although this filing date was within five days from the date the notice of appeal was mailed to the Commission. In dismissing the appeal the court did not specify its reasons for its judgment, and the parties have considered the trial court found in favor of the Commission on both contentions.

• 1 Since the briefs were filed in this case but before oral argument, the case of Department of Conservation v. Baltimore & Ohio R.R. Co. (1982), 103 Ill. App.3d 417, 431 N.E.2d 441, was decided. In the Baltimore & Ohio case the court held notices required to be given under the Public Utilities Act could be given by mail and would be deemed to have been given on the date they were deposited in the mail. In the Baltimore & Ohio case notices of appeal were mailed both to the Commission and to the circuit court within 30 days of the Commission's decision. However, the notice was received by the Commission on the 30th day and by the court on the 31st day after the decision. Since the notice of appeal was mailed to the circuit court within the appropriate time it was deemed filed on the date of mailing and declared to have been filed within the 30-day period. On the authority of the Baltimore & Ohio case and the Commission's own rules we believe that in the instant case the notice of appeal mailed to the Commission on the 30th day following the decision should be considered as having been filed with the Commission on that date even though received several days later. In fact the Commission offers little reason for not following its own rules and the Baltimore & Ohio decision so far as the mailing of notice to it is concerned.

Proceeding to consider then the question of whether filing of the notice of appeal with the circuit court on the 34th day following the decision is in accord with the statute we are presented with a different question. The notice which was filed with the circuit court was actually filed on the 34th day following the decision and was not mailed earlier. Thus it does not come within the terms of the Baltimore & Ohio case since no mailing was involved and no date of filing other than the actual date of delivery to the clerk's office is of any concern.

• 2 However, in Hoffman v. Illinois Commerce Com. (1978), 62 Ill. App.3d 85, 379 N.E.2d 42, the precise issue was raised and determined adversely to the position of the appellant City in the instant case. In Hoffman the court held the provision regarding filing notice of appeal with the circuit court within five days from service of notice of appeal on the Commission did not extend the 30-day period for perfecting the appeal to the circuit court. The City in the instant case has directed our attention to the dissenting opinion in Hoffman but we are persuaded to follow and do hereby adhere to the opinion of the majority in Hoffman.

• 3 Finally, in summary, although we believe the City did properly notify the Commission by mail, we hold it failed to properly perfect its appeal by filing its notice of appeal with the clerk of the circuit court within 30 days as required by statute.

For the foregoing reasons the judgment of the circuit court of Peoria County is affirmed.

Judgment affirmed.

JUSTICE HEIPLE, specially ...

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