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Ferndale Hts Util. Co. v. Ill. Comm. Com.

OPINION FILED DECEMBER 28, 1982.

FERNDALE HEIGHTS UTILITY COMPANY, APPELLANT AND CROSS-APPELLEE,

v.

ILLINOIS COMMERCE COMMISSION, APPELLEE AND CROSS-APPELLANT. — (METROPOLITAN HOUSING DEVELOPMENT CORPORATION, INTERVENING APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.

PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 17, 1983.

Ferndale Heights Utility Company (Ferndale) appeals from an order of the Illinois Commerce Commission (Commission) directing it to follow its tariffs in reimbursing Metropolitan Housing Development Corporation (MDHC) for the construction of water facilities used by Ferndale to provide water to a tract of land developed by MDHC. Ferndale contends that the order was issued under section 72 of the Public Utilities Act (the Act) (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 76) and that the complaint was untimely under that section. The Commission cross-appeals, contending that the circuit court lacked jurisdiction to hear the appeal from the Commission's order.

In 1969, Ferndale entered into a written agreement with Riverwoods Development Corporation under which Ferndale would provide water to a tract of land to be developed by Riverwoods. The agreement provided that Ferndale would construct the bulk of the facilities needed to bring service to the point where the water would be metered, and that the developer would bear the entire cost of constructing the necessary facilities on the site without reimbursement. Ferndale's tariffs, which were then on file with the Illinois Commerce Commission, provided that a developer which constructed facilities to be used by the utility would convey the facilities to the utility after construction and would be reimbursed for construction costs in the amount of 2 1/2 times the first year's revenue received by Ferndale from each customer attaching to the system, the reimbursement not to exceed the developer's cost of construction. Ferndale was not certified to serve the area of the proposed development, and therefore it sought a certificate of convenience and necessity from the Illinois Commerce Commission which would allow it to expand its area of service. The certificate was issued on August 6, 1969. In the order granting the certificate, the Commission declared that it was neither approving nor disapproving the agreement between the parties, but that the provisions of the agreement that were contrary to the tariffs of the utility were "null and void." No new agreement was made by the parties, and MDHC, as Riverwood's successor in interest, subsequently took an assignment of the original agreement.

By 1973, all of the facilities that were needed to provide water to the development were completed. The MDHC's cost of construction was $52,175. The facilities actually installed were substantially different from the facilities called for in the agreement.

In 1976, MDHC filed a complaint with the Commission alleging that the agreement violated several sections of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 1 et seq.), specifically because the property owners covered by the agreement were reimbursed differently than those customers of the utility covered by the tariffs, and that therefore the agreement worked a discrimination against customers covered by it. The complaint stated that it was not brought pursuant to section 72 of the Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 76). That section authorizes the Commission to order a utility to refund any excessive or discriminatory charges for its services or commodity to its customers, and any complaint under that section must be brought within one year of the time that the commodity or services were provided.

On March 1, 1978, the Commission entered an order stating that the agreement between the parties did not "violate the law and the rules and regulations of the Commission which were in force when the agreement was entered into" and that the complaint was governed by section 72 of the Act and was untimely under that section.

MDHC was granted a rehearing, and on September 6, 1978, the Commission issued an order on rehearing which stated that the complaint was not governed by section 72, that Ferndale's tariffs should govern the issue of the reimbursement to be given MDHC, and specified how the reimbursement should be calculated. The order stated that the maximum reimbursement under the tariffs was $52,175, which was the total amount of the construction costs to MDHC.

Ferndale filed a notice of appeal from the order on rehearing in the circuit court of Sangamon County. That court determined that venue should lie in Cook County, and the case was transferred. The circuit court of Cook County held that the transfer was properly treated as a matter of venue and affirmed the order of the Commission. Ferndale appeals from that order, and the Commission cross-appeals, contending that the circuit court of Sangamon County was without jurisdiction to transfer the case, and that therefore the transfer to Cook County, where jurisdiction was proper, was without effect because an original filing of the appeal in Cook County would have been untimely by the time the transfer was granted.

Section 68 of the Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 72) provides in pertinent part:

"[W]ithin 30 days after the service of any final order or decision of the Commission upon and after a rehearing of any rule, regulation, order or decision of the Commission, any person or corporation affected by such rule, regulation, order or decision, may appeal to the circuit court of the county in which the subject-matter of the hearing is situated * * *. * * * No circuit court shall permit a party affected by any rule, regulation, order or decision of the Commission to intervene or become a party plaintiff or appellant in such court who has not taken an appeal from such rule, regulation, order or decision in the manner as herein provided."

Ferndale is a utility certified to serve only areas in Cook County, and all the equipment which was installed by the parties is located in Cook County. The subject matter of the hearings before the Commission is clearly in Cook County, and therefore the filing of the appeal in Sangamon County was improper. The circuit court of Sangamon County denied the Commission's motion to dismiss the appeal, but held that the provision of section 68 relating to where the suit could be filed was a matter of venue, and transferred the case to Cook County more than 30 days after the service of the Commission's order.

• 1 The circuit court of Cook County held that the filing of this appeal in the wrong county was properly treated as a matter of venue rather than of jurisdiction. We find that the requirement that the appeal be filed in the circuit court of the county where the subject matter of the Commission's hearings is located is jurisdictional. Our supreme court has stated that "[j]urisdiction and venue are distinct legal concepts. Jurisdiction relates to the power of a court to decide the merits of a case, while venue determines where the case is to be heard." (Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill.2d 321, 328, 368 N.E.2d 88.) A circuit court sitting in review of a decision of the Commission is in the exercise of a special jurisdiction, and such appeals must be prosecuted in accordance with the requirements of the Public Utilities Act to be legally effective. (Village of Waynesville v. Pennsylvania R.R. Co. (1933), 354 Ill. 318, 321, 188 N.E. 482; Summers v. Illinois Commerce Com. (1978), 58 Ill. App.3d 933, 935, 374 N.E.2d 1111.) Section 68 of the Act prohibits the circuit court from permitting a litigant to proceed with an appeal before it if the litigant has failed to comply with the procedures set forth in the statute. Therefore, the circuit court of Sangamon County had no power to decide the merits of the case because the appeal was not made to the circuit court of the county in which the subject matter of the hearings was located.

• 2 A court in the exercise of general jurisdiction is empowered to transfer a case for lack of subject matter jurisdiction if transfer will cure the defect and avoid the necessity of dismissing the suit. (See Ill. Rev. Stat. 1979, ch. 110, par. 48(1)(a), superseded without change of substance by Ill. Rev. Stat. 1981, ch. 110, par. 2-619(a)(1).) Our supreme court has held that the same power attaches to a court sitting in the exercise of a special jurisdiction. In the case of Central Illinois Public Service Co. v. Industrial Com. (1920), 293 Ill. 62, 127 N.E. 80, the appellant filed an appeal from a workmen's compensation award in the circuit court of Coles County. The appellee filed a motion to quash the writ of certiorari for lack of subject matter jurisdiction. After that motion was allowed, the appellant moved to reinstate the writ and for transfer of the case to Champaign County, where subject matter jurisdiction was proper. Our supreme court held that although subject matter jurisdiction was lacking in the circuit court of Coles County, that court had jurisdiction of the case for purposes of transfer. The court based its holding on section 1 of the venue act of 1891 (Hurd's Rev. Stat. 1917, ch. 146, par. 36), which provided that ...


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