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City of Peoria v. Ill. Commerce Com.

OPINION FILED JUNE 9, 1983.

THE CITY OF PEORIA, APPELLANT,

v.

THE ILLINOIS COMMERCE COMMISSION, APPELLEE.



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Peoria County, the Hon. Charles M. Wilson, Judge, presiding.

JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

Plaintiff, the city of Peoria, sought to appeal to the circuit court of Peoria County from an adverse ruling of the Illinois Commerce Commission. It mailed its notice of appeal to the Commission on the 30th day after the order was served on the city, and the Commission received the notice three days later. On the 34th day following the Commission's order the city filed a copy of the notice of appeal and proof of service with the clerk of the Peoria County circuit court.

The Commission moved to dismiss the appeal, asserting that the city failed to either serve the notice of appeal on the Commission or file a copy with the court clerk within the time required by section 68 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 111 2/3, par. 72), which establishes the procedure for challenging orders of the Commission, and therefore, the Commission contends, the circuit court lacked jurisdiction. The circuit court of Peoria County allowed the motion to dismiss, and the appellate court, with one judge dissenting, affirmed the dismissal (108 Ill. App.3d 540).

Two questions are presented: First, must the notice of appeal reach the Commission on or prior to the 30th day after the service of the order appealed from so that notice mailed on or before the 30th day which reaches the Commission after the 30th day is untimely? The Commission answers yes; the city argues no. Second, in the event the notice of appeal is served on the Commission on the 26th day or later, does the party appealing have five additional days in which to file a copy of the notice of appeal with the court clerk or must this filing be accomplished not later than the 30th day after the service of the Commission's order on the party seeking to appeal? The Commission says the filing with the circuit court clerk as well as the service on the Commission must be accomplished by the 30th day; the city contends it has five days after service on the Commission to file a copy of the notice served on the Commission. In addition to the appellate court opinion in this case, the appellate court has considered the first question in Department of Conservation v. Baltimore & Ohio R.R. Co. (1982), 103 Ill. App.3d 417, and the second question in Hoffman v. Illinois Commerce Com. (1978), 62 Ill. App.3d 85. We believe the city's position is the correct one on both questions, and consequently the circuit court should have proceeded to consider the city's objections to the Commission's ruling.

DID MAILING THE NOTICE OF APPEAL CONSTITUTE SERVICE ON THE COMMISSION?

The Commission's Rule IX(d), which was adopted pursuant to authority conferred on the Commission by section 8 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 111 2/3, par. 8), provides:

"Service shall be made by delivering in person or by depositing in the United States mail, properly addressed with postage prepaid, one copy to each party entitled thereto."

The city was entitled to rely upon the Commission's own rule in effecting service by mail, and the Commission was bound by its rule. Under that rule service was complete when the notice of appeal was deposited in the United States mail on the 30th day, "properly addressed with postage prepaid," even though the Commission did not actually receive the notice until some days later.

The Commission argues that, notwithstanding its own rule, mailing of a notice of appeal to the Commission does not constitute service because the question of notice relates to the jurisdiction of the court to hear the case. Section 68 does not state that receipt of the notice of appeal by the Commission within 30 days is a jurisdictional requirement. The observation of the appellate court in Illinois Telephone Association v. Illinois Commerce Com. (1978), 57 Ill. App.3d 968, 971, is an appropriate and succinct answer to the Commission's argument:

"We see no reason why any step in the perfection of an appeal from an order or decision, rule or determination, by the Commission should have to be pursued with more exactitude than an appeal from an order of the circuit court. The appeal is initiated by the timely filing of the notice of appeal. We find no logical or statutory reason why any other step should be determined to be jurisdictional."

In any event, no provision of either section 68 of the Public Utilities Act or the Commission's Rule IX(d) indicates that different conditions apply to service of the notice document. Rule IX(d) does not require that a notice of appeal or any other document must be received by the Commission before the service is complete; nor does section 68 provide anything to the contrary.

Another rule of the Commission (Rule XXVI) provides that its rules shall not be construed to abrogate or limit any rights or privileges granted by the laws of this State. One such privilege is contained in section 1.25 of "An Act to revise the law in relation to the construction of the statutes" (Ill. Rev. Stat. 1981, ch. 1, par. 1026), which provides:

"Unless An Act otherwise specifically provides, any writing of any kind or description required or authorized to be filed with, and any payment of any kind or description required or authorized to be paid to, the State or any political subdivision thereof, by the laws of this State:

(1) if transmitted through the United States mail, shall be deemed filed with or received by the State or political subdivision on the date shown by the post office cancellation mark stamped ...


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