Illini Carrier, L.P. v. Illinois Commerce Comm'n

                                        THIRD DIVISION
                                        MAY 28, 1997




1-95-3894

ILLINI CARRIER, L.P.,                   )    Appeal from
                                        )    the Circuit Court
     Plaintiff-Appellant and            )    of Cook County.
     Cross-Appellee,                    )
                                        )    
          v.                            )
                                        )
ILLINOIS COMMERCE COMMISSION,           )
ILLINOIS POWER COMPANY, ILLINOIS        ) 
HISTORIC PRESERVATION AGENCY, and       )
THE DEPARTMENT OF AGRICULTURE,          )
                                        ) 
     Defendants-Appellees,              ) 
                                        )
     and                                )  
                                        )    
ILLINOIS POWER COMPANY and ILLINOIS     )    
COMMERCE COMMISSION,                    )    The Honorable
                                        )    Lester D. Foreman,  
     Defendants and Cross-Appellants.   )    Judge Presiding.


     JUSTICE LEAVITT delivered the opinion of the court:
     This appeal presents an issue of first impression regarding
the responsibility of the Illinois Commerce Commission (the
Commission) under section 18c-2109 of the Illinois Commercial
Transportation Law (the Transportation Law) (625 5/18c-2109 (West
1992)), to render a decision within 90 days of completing oral
hearings in a case.  The trial judge, presiding under the
Administrative Review Law (the Review Law) (735 ILCS 5/3-101 et
seq. (West 1994)), held that a Commission order issued after 90
days had passed was void.  The judge also made rulings ancillary
to this holding.  The plaintiff Illini Carrier, L.P. (Carrier),
and the defendants, Illinois Power Company (IPC) and the
Commission, have each appealed various aspects of these rulings.
     The relevant background facts are as follows.  Carrier is a
limited partnership registered pursuant to the Transportation Law
to do business in Illinois as a common carrier of natural gas by
pipeline.  In October 1988, the Commission issued a certificate
of authority permitting Carrier to so operate; however, the
Commission limited Carrier's authority to providing natural gas
transportation services "to existing industrial and commercial
customers other than those currently served by [IPC] or Union
Electric Company on an exclusive basis."  Since then, Carrier has
constructed a pipeline enabling it to deliver natural gas to
Madison and St. Clair Counties in Illinois.
     On January 10, 1991, Carrier applied to the Commission for
permanent authority under the Transportation Law to transport
natural gas to a refinery operated in Hartford, Illinois by the
Clark Oil & Refining Company (Clark Oil).  Carrier also filed an
application for an "interim order" pursuant to section 18c-2108
(625 ILCS 5/18c-2108 (West 1992)), seeking temporary authority to
serve Clark Oil.  At the time, Clark Oil was an exclusive
customer of IPC.  On February 6, 1991, the Commission issued an
interim order permitting Carrier to service Clark Oil on a
temporary basis.  Carrier, rather than IPC, has been servicing
Clark Oil since February 1991.  On February 26, 1991, a hearing
examiner conducted a hearing on Carrier's application for
permanent authority.  
     IPC subsequently filed a petition for leave to intervene
which was denied by the hearing examiner, and the hearing
examiner issued to the Commission a "recommended order" on
Carrier's application.  IPC then filed an interlocutory appeal to
the Commission regarding its right to intervene.  The Commission
issued a second interim order overturning the denial of IPC's
petition to intervene and remanded the case to the hearing
examiner to hold additional evidentiary hearings and to develop a
complete record in the matter. 
     The hearing examiner conducted the requisite hearings, and
on June 11, 1993, he issued an unsigned document ink-stamped with
the term "Hearing Examiner's Proposed Order" (the Proposed Order)
finding in favor of Carrier's application for permanent authority
to service Clark Oil.  Pursuant to section 200.830 of the
Commission's Rules of Practice (83 Ill. Adm. Code  200.830
(1993)), IPC filed a brief on exceptions objecting to the
Proposed Order.  Carrier filed an opposing brief.  On July 20,
1993, and again on September 15, 1993, the Commission heard oral
argument concerning the Proposed Order.  The Commission marked
its record "heard and taken" after the second oral argument. 
Over 10 months later, on July 20, 1994, the Commission issued a
decision denying Carrier's application for permanent authority. 
Carrier timely filed a motion for rehearing, which was denied on
October 5, 1994.
     On October 17, 1994, Carrier filed a complaint seeking
judicial review of the Commission's decision pursuant to the
Review Law.  Carrier raised numerous substantive issues regarding
the Commission's decision; however, the trial judge did not reach
those issues.  Rather, he addressed solely jurisdictional and
procedural issues raised by the complaint: (1) whether the
Commission's order was void because it was issued more than 90
days after the close of oral hearings in contravention of section
18c-2109 of the Transportation Law; and (2) whether the Proposed
Order granting Carrier's application issued by the hearing
examiner became the order of the Commission under section 18c-
1203 when the Commission did not issue a decision within 90 days.
     The trial judge heard extensive argument on the issues, and
on July 20, 1995, he held that the Commission's order was void
due to the Commission's failure to decide the case within 90 days
and that the Commission had lost jurisdiction over the case.  The
judge also held, however, that the Proposed Order was not the
final order in the case.  Instead, the judge stated that the
interim order remained in effect.  The parties filed motions for
rehearing, and, on October 23, 1995, the judge granted the
Commission's motion in part, amending his order to reflect that
"[the Commission] is entitled to resume consideration of the
Interim Order, and if it chooses to do so, may revoke the Interim
Order."
     Initially, we address the contention by the Commission and
IPC, raised in their cross-appeals, that the trial judge should
have dismissed Carrier's complaint because Carrier failed to
properly issue summons on the defendants in compliance with the
Review Law.  This issue arises because of the manner in which
Carrier filed its action.  On August 9, 1994, after the
Commission issued its decision denying Carrier's application for
permanent authority, but before the order became final, Carrier
filed an action in the circuit court against the Commission
seeking an injunction barring enforcement of the decision. 
Carrier served the Commission with summons in conjunction with
that filing.  Carrier subsequently filed a motion for rehearing
before the Commission.
     In response to Carrier's complaint, the Commission filed a
special and limited appearance in the circuit court and moved to
dismiss the injunction action for lack of jurisdiction because
Carrier had failed to exhaust administrative remedies.  Section
18c-2201(2) of the Transportation Law states that rulings of the
Commission are not final and may not be reviewed until all
motions for rehearing have been denied by the Commission.  Also,
IPC moved to intervene in the injunction action and sought leave
to file a motion to dismiss on the same grounds.  The trial judge
deferred ruling on the motions.  The Commission then denied
Carrier's motion for rehearing in the agency action.  Within 35
days, Carrier moved to withdraw its injunction action and to
amend its complaint to state a claim under the Review Law, naming
as defendants the Commission and IPC.  Carrier did not serve
summons on the Commission in conjunction with its amended
complaint.  Carrier served IPC by hand delivering a summons.
     The Commission and IPC filed their motions to dismiss, the
Commission arguing that it had not been served summons, and IPC
arguing that service had not been effected by certified or
registered mail, as contemplated by section 3-107 of the Review
Law, nor was service in the form provided by Illinois Supreme
Court Rule 291 (134 Ill. 2d R. 291).  The trial judge denied the
defendants' motions to dismiss on the ground that they had waived
any error in the service of summons and, in addition, because IPC
had been personally served summons.
     Section 3-103 of the Review Law provides that "[e]very
action to review a final administrative decision shall be
commenced by the filing of a complaint and the issuance of
summons within 35 days from the date that a copy of the decision
sought to be reviewed was served upon the party affected."  735
ILCS 5/3-103 (West 1994).  The requirement that summons be issued
within 35 days is mandatory, rather than jurisdictional.  Lockett
v. Chicago Police Board, 133 Ill. 2d 349, 355, 549 N.E.2d 1266
(1990); Johnson v. Department of Public Aid, 251 Ill. App. 3d
604, 622 N.E.2d 50 (1993).  When a plaintiff fails to serve
summons within 35 days, as required, the action is subject to
dismissal on motion by a defendant filed at any time before
answering the complaint.  Johnson, 251 Ill. App. 3d at 606.  In
order to avoid dismissal in such cases, the plaintiff must make a
showing of a "good-faith effort to issue summons within the
statutory period."  Lockett, 133 Ill. 2d  at 355.  
     We believe that under the unique procedural circumstances of
this case, the agency and IPC have waived their rights to object
to the improper service.  On October 17, 1994, within 35 days of
the day the Commission's order became final, the trial judge
granted leave to Carrier to file its amended complaint under the
Review Law.  Also on October 17, Carrier filed an emergency
motion for stay of the Commission's order.  On October 18, 1994,
IPC responded to the motion on the merits, although the
Commission did not respond to the motion.  On November 16, 1994,
however, five days after the 35-day period had expired, the trial
judge entered an agreed order, in which both the Commission and
IPC agreed to a briefing schedule for answering the amended
complaint.  
     The service requirement under the Review Law is "intended to
'hasten the procedure' of administrative review and avoid undue
delay."  Lockett, 133 Ill. 2d  at 355.  This purpose is fully
effectuated in this case, where one of the defendants (IPC) was
served, albeit imperfectly, and actually litigated a substantive
motion for a stay, and where both defendants appeared in court
after 35 days had passed and specifically agreed to answer the
complaint.  See Johnson, 251 Ill. App. 3d at 606 (defendant may
move to dismiss for improper service of summons until it answers
the complaint).  If the Commission and IPC wished to object to
the issuance of summons, they should not have agreed to answer
the complaint.  This distinguishes this case from Buroff v. Board
of Fire & Police Commissioners, 248 Ill. App. 3d 626, 627-28, 618 N.E.2d 930 (1993), in which the record contained no such
agreement.  We hold that the defendants have waived their rights
to object pursuant to the 35-day requirement in section 3-103 of
the Review Law.
     In its cross-appeal, IPC also contends that the trial judge
erred in finding that the Commission's order was void.  The trial
judge initially ruled that under section 18c-2109 of the
Transportation Law, the Commission lost jurisdiction to issue its
ruling 90 days after the close of oral argument in the case. 
However, in granting, in part, the Commission's motion for
rehearing, the judge modified finding four of his order to
indicate that the Commission could reopen the proceedings, thus
implying that section 18c-2109 does not impose a jurisdictional
requirement.  We note that the Commission has specifically
informed this court that it does not challenge the trial judge's
interpretation of section 18c-2109.  In any event, we agree with
the trial judge's holding in this regard to the extent he found
that the order issued by the Commission after 90 days has elapsed
is void.
     Section 18c-2109 of the Transportation Law states:
          "The Commission shall consider matters properly
     before it in the most expeditious manner possible, and
     in no case shall the final order resolving matters in a
     proceeding be entered later than the 90th day following
     the close of oral hearing.  Proceedings may be
     reassigned in order to expedite consideration and
     disposition."  625 ILCS 5/18c-2109 (West 1992).
Generally, statutory provisions that specify a time within which
an agency must act are merely directory, "'unless the nature of
the act to be performed or the language used in the statute
evidences an intention to limit'" the agency's power.  Frances
House, Inc. v. Department of Public Health, 269 Ill. App. 3d 426,
430, 645 N.E.2d 1009 (1995), quoting Foley v. Civil Service
Comm'n, 89 Ill. App. 3d 871, 873, 412 N.E.2d 612 (1980).  When a
provision contains "negative words importing that the act shall
not be done in any other manner or time than that designated ***
or where a disregard of its provisions would injuriously affect a
public or private right," it is deemed mandatory.  Foley, 89 Ill.
App. 3d at 873.  
     IPC argues that interpreting section 18c-2109 as directory
would not injuriously affect Carrier's rights because it had been
operating under a grant of temporary authority throughout the
proceedings.  This is true; however, the rule announced in Foley
and reaffirmed in Frances House is in the disjunctive: whether
disregard of the provisions would injure a party's rights or
whether the statute contains negative language.  The latter is
thus sufficient in itself to render the time limitation mandatory
upon the agency.
     Section 18c-2109 contains a negative proscription: "in no
case shall" a final order be entered more than 90 days "after the
close of oral hearing."  625 ILCS 5/18c-2109 (West 1992). 
Although this language is preceded by a directive that "the
Commission shall consider matters before it in the most
expeditious manner possible," we consider this to indicate a
legislative intent that the decision be rendered sooner than 90
days.  625 ILCS 5/18c-2019 (West 1992).  Furthermore, the last
sentence of section 18c-2109 includes an additional expression of
negative legislative intent, allowing for the Commission to
reassign a matter if the Commission believes doing so will
expedite it.  The legislature enacted the Transportation Law to
"facilitate a coordinated approach to regulation of motor
carriers, rail carriers, common carriers by pipeline, and
brokers."  625 ILCS 5/18c-1102(a) (West 1992).  The legislature
also found that the "accelerating pace of change in the
transportation industry *** necessitates the streamlining of
regulatory procedures to allow for prompt action to protect the
interests of the people of the State of Illinois."  625 ILCS
5/18c-1102(b) (West 1992).
     We believe that a mandatory interpretation of section 18c-
2109 is consistent with the plain language, intent and purpose of
the Transportation Law.  Hence, we affirm the trial judge's
ruling that the Commission's order, issued beyond the 90-day
limitation, is void.  However, we agree with the defendants, as
well as the implication of amended finding four, that the
Commission's failure to rule did not strip the agency of
"jurisdiction" over this cause.
     Section 18c-2109 does not state that its proscription is
jurisdictional.  Furthermore, as the Commission notes, section
18c-2110(2) of the Transportation Law grants the Commission
continuing authority to "reopen a proceeding to consider
clarification, modification, or rescission of its order" so long
as it does not, in doing so, "impair the vested rights of any
person."  625 ILCS 5/18c-2110(2) (West 1992).  Such authority is
not consonant with a legislative intent to divest the
Commission's jurisdiction over a matter before such time as a
final order is entered in the case.
     Indeed, this court has recognized that the term
"'jurisdiction' may not be strictly applicable to [an]
administrative body; however, it is appropriately utilized to
designate the authority of that agency to act."  Spray v.
Illinois Civil Service Comm'n, 114 Ill. App. 3d 569, 573, 449 N.E.2d 176 (1983).  Because the Transportation Law grants the
Commission continuing authority to act in a given matter, we hold
that the time proscription in section 18c-2109 is not
"jurisdictional."
     In its appeal, however, Carrier urges that the Commission
should not be permitted to resume consideration of its
application because the Proposed Order of June 10, 1993, should
become the final order in the case.  Carrier relies on section
18c-1203 of the Transportation Law, which establishes a hearing
officer's authority to issue "initial decisions" and grants
parties a right to appeal an initial decision to the Commission. 
Section 18c-1203(4) states, "An initial decision which has not
been administratively appealed or the administrative appeal of
which has been denied shall be effective and enforceable in the
same manner as an order of the Commission."  625 ILCS 5/18c-
1203(4) (West 1992).  Carrier contends that when the Commission
did not rule on its application within 90 days, the effect was to
deny IPC's appeal of the Proposed Order, thus rendering that
order "enforceable in the same manner as an order of the
Commission."  Carrier's contentions in this regard would require
that we hold that the Proposed Order was a section 18c-1203
initial decision.
     In conjunction with this issue, Carrier urges that the trial
judge erred in striking an affidavit it attached to its motion
for rehearing.  The affidavit was sworn by Rory McGinty, who was
special counsel to the Commission during the drafting of the
Transportation Law.  McGinty's affidavit contained his view of
the legislative intent with regard to section 18c-1203 of the
Transportation Law.  The judge struck the affidavit because
Carrier had not presented it to the Commission during the agency
proceedings, and, therefore, it was not part of the
administrative record.  Section 3-110 of the Review Law provides
that "[n]o new or additional evidence in support of or in
opposition to any finding, order, determination or decision of
the administrative agency shall be heard by the court."  735 ILCS
5/3-110 (West 1994).  This proscription applies to affidavits not
presented in the agency.  Burgess v. Board of Fire & Police
Commissioners, 209 Ill. App. 3d 821, 568 N.E.2d 430 (1991).  The
trial judge did not err in striking the affidavit.   
     The trial judge ruled that the Proposed Order was not an
initial decision as defined in section 18c-1203 of the
Transportation Law.  We note that the document is not entitled
"initial decision."  Rather, it is entitled "Order," followed by
language indicating that the order is issued "By the Commission." 
Also, each page of the document is clearly stamped with the term
"Hearing Examiner's Proposed Order."  The final page of the
document also demonstrates that it was the intent of the drafter
of the Proposed Order that it be adopted and signed by the
Chairman of the Commission as the final order in the case.  The
conclusion of the Proposed Order states "IT IS THEREFORE ORDERED
by the Illinois Commerce Commission" that Carrier's application
is granted and that "subject to section[s] 18c-2201 and 18c-2206
of the [Transportation Law], this is a final decision subject to
the Administrative Review Law.  By order of the Commission this
___ day of ___, 1993.  Chairman."
     By contrast, section 18c-1203(2) states that "[d]ecisions
under this Section shall be by letter notice or directive, signed
by the person authorized to make the initial decision.  Such
notice or directive shall be effective and enforceable in the
same manner as an order of the Commission."  (Emphasis added.)
625 ILCS 5/18c-1203(2) (West 1992).  The Proposed Order is not
signed by the hearing examiner or anyone else.  Therefore, even
assuming the Commission intended for the hearing examiner to
issue the Proposed Order as an initial decision under section
18c-1203, it would not become an enforceable final order under
section 18c-1203(3).  
     Nonetheless, we do not believe the Proposed Order is an
initial decision under section 18c-1203.  The notification to the
parties accompanying the Proposed Order explicitly states that it
was prepared, not under the authority of section 18c-1203 but,
rather, "pursuant to the Commission's Rules of Practice (83 Ill.
Adm. Code 200)."  The body of the Proposed Order also states that
"A proposed order was served on all parties in accordance with 83
Ill. Adm. Code 200.820." (Emphasis added.)  Although the parties
dispute precisely what procedure authorized the hearing
examiner's conduct of the proceedings in this case--the
defendants contend the hearings were conducted pursuant to the
Illinois Administrative Procedure Act (5 ILCS 100/1-1 et seq.
(West 1992) and the plaintiff's brief implies they were conducted
solely pursuant to the provisions in the Transportation Law--we
do not believe we need resolve that issue to determine the nature
of the Proposed Order, nor do we believe that issue is properly
before us, as it was never raised before the Commission.  We note
only that section 18c-2102(1) states that the Commission may only
issue orders after notice and hearings "in accordance with the
rules of practice applicable" to the Transportation Law.  625
ILCS 5/18c-2102(1) (West 1992).  See 625 ILCS 5/18c-2103(1) (West
1992) (authorizing the Commission to adopt such rules of
practice).
     Section 200.500 of the Commission's Rules of Practice
authorizes a hearing examiner to conduct proceedings and imposes
a "responsibility for submission of the matter to the Commission
for decision." (Emphasis added.)  83 Ill. Adm. Code  200.500
(1993).  In carrying out this responsibility, the hearing
examiner is authorized "[t]o issue recommended proposed orders
pursuant to section 200.820."  83 Ill. Adm. Code  200.500(f)
(1993).  Section 200.820(b)(1) provides for a hearing examiner to
issue a proposed order in contested cases, after which the
parties may, as they did here, file "briefs on exceptions" and
replies thereto (83 Ill. Adm. Code  200.830 (1993)) and may
argue their case orally before the Commission. 83 Ill. Adm. Code
 200.850 (1993).  Of particular note, section 200.860 provides,
"Following receipt of the proposed order of the Hearing Examiner
and any briefs of the parties, and following oral argument, if
any, the Commission shall make its decision***."  83 Ill. Adm.
Code  200.860 (1993).
     Our review of the Proposed Order indicates it was issued
pursuant to the hearing examiner's authority under sections
200.500(f) and 200.820(b)(1).  Such "recommended proposed orders"
are clearly interlocutory in nature and not intended to be final
orders.  Therefore, we agree with the trial judge that the
Proposed Order did not become the final order in this case after
the Commission failed to issue its decision in 90 days.
     The trial judge's order also states that the interim order
remains in effect because of the Commission's failure to act
within 90 days: "This Court finds that because no final order was
entered by the ICC, the ICC's interim order entered on February
6, 1991, continues in effect."  In their cross-appeals, the
Commission and IPC contend that the trial judge lacked
jurisdiction to make this finding because Carrier failed to
present an issue regarding the interim order in its complaint and
because the trial judge lacked authority under the Review Law to
render a declaratory judgment regarding the continued effect of
the interim order.  In the alternative, the defendants contend
that the interim order has expired by operation of law due to the
issuance of a final order by the Commission, regardless of the
fact that the order is void.
     Section 18c-2108(2) of the Transportation Law states that
interim orders "shall remain in effect pending final disposition
*** unless otherwise provided in the interim order***."  625 ILCS
5/18c-2108(2) (West 1992).  The February 6, 1991 interim order
states, as part of its terms, that: "IT IS FURTHER ORDERED that
the temporary authority conveyed herein shall expire
automatically upon issuance of a final order denying the
corresponding application for authority *** unless otherwise
ordered by the Commission."  By statute and by its own terms, the
interim order is interlocutory in nature.  Thus, under the Review
Law, the trial judge lacked jurisdiction to "review" the interim
order.  735 ILCS 5/3-101, 3-102 (West 1994).
     Nonetheless, we do not consider that the trial judge
reviewed the interim order.  Rather, his finding was more in the
nature of a logical observation that because the Commission had
not entered a valid final order in the case, the interim order
remained in effect.  Although we note that the Commission's order
was an "administrative decision" and thus "final" in the sense
that, by determining the rights of the parties, it was appealable
under the Review Law (735 ILCS 5/3-101, 3-102 (West 1994)),
because we have held the order void, there has been no
determination in this case at all, let alone, as the judge noted,
a "final order denying the corresponding application for
authority."  As a result, we consider that the status in this
case remains as of the day the Commission lost the authority to
render a decision.  That is also the import of the trial judge's
"finding."  We do not perceive that he acted outside his
authority in this regard.
     For all of the foregoing reasons, the judgment is affirmed.

     Affirmed.
     ZWICK, P.J., and RAKOWSKI, J., concur.