People ex rel. Ryan v. Commerce Comm'n

Nos. 2--97--0963, 2--97--0964, & 2--97--0965, Cons.
_________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________

PEOPLE OF THE STATE OF ILLINOIS ) Petition for Review of an
ex rel. JAMES E. RYAN, Attorney ) Order of the Illinois Commerce
General, ) Commission.
)
Petitioner-Appellant, )
)
v. ) Nos. 92--0448, 93--0239
)
ILLINOIS COMMERCE COMMISSION )
and ILLINOIS BELL TELEPHONE )
COMPANY, )
)
Respondents-Appellees. )
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CITIZENS UTILITY BOARD, ) Petition for Review of an
) Order of the Illinois Commerce
Petitioner-Appellant, ) Commission.
)
v. ) Nos. 92--0448, 93--0239
)
ILLINOIS COMMERCE COMMISSION )
and ILLINOIS BELL TELEPHONE )
COMPANY, )
)
Respondents-Appellees. )
________________________________________________________________

CABLE TELEVISION AND ) Petition for Review of an Order
COMMUNICATIONS ASSOCIATION OF ) of the Illinois Commerce
ILLINOIS, ) Commission.
)
Petitioner-Appellant, )
)
v. ) Nos. 92--0448, 93--0239
)
ILLINOIS COMMERCE COMMISSION )
ILLINOIS BELL TELEPHONE )
COMPANY, )
)
Respondents-Appellees. )
_________________________________________________________________

JUSTICE INGLIS delivered the opinion of the court:

In these consolidated appeals, petitioners, People of the
State of Illinois ex rel. James E. Ryan, Attorney General; Citizens
Utility Board; and Cable Television and Communications Association
of Illinois (collectively petitioners), appeal the order of the
Illinois Commerce Commission (Commission) entered pursuant to this
court s order in Illinois Bell Telephone Co. v. Illinois Commerce
Comm'n, 283 Ill. App. 3d 188 (1996)(hereinafter Bell). We dismiss
the appeals for lack of jurisdiction.
We reversed and remanded the Commission s order in Bell as a
result of the Commission s failure to determine whether Illinois
Bell Telephone Company s (IBT's) risk or cost of capital was
increased as a result of its relationship with its parent
corporation, Ameritech, as required under section 9--230 of the
Public Utilities Act (Act) (220 ILCS 5/9--230 (West 1996)). Bell,
283 Ill. App. 3d at 210. On remand, the Commission found that
section 9--230 had not been violated due to the relationship
between IBT and Ameritech and that IBT s capital structure suffered
no incremental risk or increased cost of capital due to its
affiliation with Ameritech.
The Commission entered and served its order on July 7, 1997.
Petitioners mailed their applications for rehearing on August 8,
1997, which was 32 days after service of the Commission s order.
The Commission denied the applications for rehearing on August 29,
1997. Petitioners filed their respective notices of appeal on
September 25, 1997.
On appeal, the Commission and IBT contend that petitioners
applications for rehearing were untimely because they were not
filed within 30 days of the date of service of that order as
required under section 10--113 of the Act. 220 ILCS 5/10--113
(West 1996). Their argument is based on the following. Section
10--113 requires the party challenging a Commission s order to make
an application for rehearing prior to filing an appeal. The time
limit for making an application for rehearing is 30 days after
service of the Commission s order. 220 ILCS 5/10--113 (West 1996).
Under section 10--112 of the Act, mailing constitutes service. 220
ILCS 5/10--112 (West 1996). Further, since the 30-day period is
statutory, neither the parties nor the Commission can extend it.
People ex rel. Illinois Highway Transportation Co. v. Biggs, 402 Ill. 401, 407 (1949). Petitioners mailed their petitions for
rehearing 32 days after service of the Commission s order.
Therefore, because petitioners' applications for rehearing were
untimely, this court is without jurisdiction to entertain their
appeals.
Petitioners do not deny that they filed their respective
applications for rehearing 32 days after the date of service of the
Commission s order. They argue that, because the Commission s
order was served by mail, petitioners were entitled to four
additional days beyond the 30-day statutory limit to file their
application for rehearing pursuant to section 200.150(c) of the
Administrative Code (Code). 83 Ill. Admin. Code 200.150(c)
(1996). Petitioners also argue that the conduct of the Commission
and IBT revested the Commission with jurisdiction.
Petitioners' reliance on section 200.150 is misplaced.
Section 200.150 of the Code provides, in relevant part:
"SUBPART B: FORM, FILING AND SERVICE OF PLEADINGS
Section 200.150 Service
(a) Formal complaints will be served by the Commission only.
(b) Petitions, applications, answers, intervening petitions,
supplemental complaints and petitions, amendments to
pleadings, written motions, responses, replies, notices,
suggested findings of fact and conclusions of law,
exceptions to Hearing Examiners proposed orders, briefs,
drafts or suggested forms of order, applications for
further hearing, petitions for rehearing, and similar
documents shall be filed with the Chief Clerk of the
Commission and shall be served by the person filing same
upon all parties to the proceeding and upon Staff and the
Hearing Examiner, if any, and, when filed, shall be
accompanied by proof of service upon all parties. ***
(c) *** Except as otherwise provided by the Commission or the
Hearing Examiner, whenever Staff or a party has the right
or is required to do some act within a prescribed period
after the service of a notice or other document upon
Staff or the party, and the notice or other document is
served upon Staff or the party by mail, four days shall
be added to the prescribed period." 83 Ill. Admin. Code
200.150 (a), (b), (c) (1996).
Rules promulgated by an administrative agency are construed
under the same standard as statutes. Granite City Division of
National Steel Co. v. Illinois Pollution Control Board, 155 Ill. 2d 149, 162 (1993). In construing statutes, courts must not be guided
by a single sentence or by an isolated provision but should
consider each provision in conjunction with every other provision
of the statute in light of its purposes. Miller v. Department of
Registration & Education, 75 Ill. 2d 76, 81 (1979). Under the rule
of expressio unis est exclusio alterius, when an act lists things
to which it refers, the court may infer that any omissions were
intended as exclusions. Bank of Waukegan v. Kischer, 246 Ill. App.
3d 616, 620 (1993).
Applying these principles, we determine that section 200.150
of the Code does not apply to Commission s orders. By its express
terms, section 200.150 relates to the service of pleadings and
other papers by parties to a Commission action. Subsection (a)
provides that only the Commission may serve a formal complaint.
Subsection (b) describes a party s obligations for filing all other
pleadings with the Commission and service of those pleadings upon
other parties. Subsection (c) describes the requirements
applicable to parties for service by mail, including that service
is effective upon the date of mailing. Subsection (c) provides
that where service of a "notice or other document is served upon
Staff or the party" by mail, four days is added to the time period
otherwise provided for response. (Emphasis added.) 83 Ill. Admin.
Code 200.150(c) (1996). There is no reference to Commission
orders, service of Commission orders, or the time period for
responding to Commission orders.
Other provisions promulgated by the Commission address service
of Commission orders. For service of Commission orders, section
200.860 provides that the Commission shall serve a copy of its
order upon all parties in the manner provided by section 10--112 of
the Act. 83 Ill. Admin. Code 200.860 (1996). As stated above,
section 10--112 of the Act provides that mailing constitutes
service. 220 ILCS 5/10--112 (West 1996). The provision concerning
applications for rehearings provides that, following the issuance
of an order on the merits by the Commission, a party may file an
application for rehearing which, if filed, must be filed within 30
days after service of the order on the party. 83 Ill. Admin. Code
200.880(a) (1996). This provision tracks section 10--113, which
mandates the requirements to perfect an appeal. 220 ILCS 5/10--113
(West 1996).
Moreover, the Commission does not have the power to modify the
effective date of service of Commission orders as prescribed in
section 10--112 of the Act or the 30-day period for filing an
application for rehearing under section 10--113 of the Act. The
Commission derives its power from the statute and only has the
authority that is expressly conferred upon it. Biggs, 402 Ill. at
409. Because the Commission is a creation of the legislature, its
acts or orders that fall beyond the purview of the statute creating
it are void. Biggs, 402 Ill. at 409. Since the 30-day time period
for filing a rehearing petition is statutory, neither the
Commission nor the parties may extend it. Salon Trucking Co. v.
Illinois Commerce Comm'n, 84 Ill. App. 3d 604, 606 (1980).
Petitioners reliance on Board of Education of Plainfield
Community Consolidated School District No. 202 v. Illinois
Education Labor Relations Board, 143 Ill. App. 3d 898 (1986) is
misplaced. In that case, the school district mailed its notice of
appeal after the 35-day time limit of section 3--103 of the Code of
Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 3--103 (now
codified at 735 ILCS 5/3--103 (West 1996))) had expired. Board of
Education, 143 Ill. App. 3d at 902. Section 3--103 provided that
the method of service to review a final administrative decision
"shall be as provided in the Act governing the procedure before the
administrative agency, but if no method is provided, a decision
shall be deemed to have been served *** when deposited in the
United States mail." Ill. Rev. Stat. 1983, ch. 110, par. 3--103.
The labor relations board promulgated section 1100.30, entitled
"Computation and Extensions of Time." 80 Ill. Admin. Code 1100.30
(1984). This rule provided a method for computing any period of
time that was prescribed by the Act and the Code. The rule further
provided that "[w]henever a time period begins running upon the
service of notice or other document upon a party, and service is
effected by mail, three days shall be added to the prescribed
period." 80 Ill. Admin. Code  1100.30(c) (1984). Because section
3--103 gave the labor relations board the power to provide for a
method of service and because the time computations under section
1100.30 were general in nature, the court concluded that the three-
day time extension applied to notices of appeal, and, therefore,
the district s notice of appeal was timely. Board of Education,
143 Ill. App. 3d at 904. While we question the court s reasoning
and conclusion, even if it were applicable, we find the case to be
inapposite. Board of Education dealt with statutes and rules
different from those in the present case. There, the statute
concerned the method of service to review a final administrative
decision. The present case involves the statutory requirements for
service of a petition for rehearing. Moreover, the Commission has
promulgated a detailed scheme to cover the service of Commission
orders under section 200.860. While section 200.150 contains
language similar to that used by the labor relations board in
section 1100.30, section 200.150 clearly is not general in nature,
but is limited to service of party papers upon the parties.
Next, we find that the revestment doctrine does not apply to
the facts of this case. Revesting occurs where, by appearing
voluntarily and participating in further proceedings, the parties
restore jurisdiction to the court that it had lost as a result of
the expiration of 30 days following the entry of an order
dismissing an action. Ridgely v. Central Pipe Line Co., 409 Ill. 46, 49-50 (1951). To apply the rule, the parties must actively
participate without objection in proceedings that are inconsistent
with the merits of the prior judgment. See Sears v. Sears, 85 Ill. 2d 253, 260 (1981). Here, there is no basis to support the
argument of active participation. Petitioners maintain that the
failure to object to a petition for rehearing amounts to active
participation. We agree with IBT that such inaction cannot be
construed as active participation. Further, revestment requires
active participation in further proceedings inconsistent with the
maintenance of the original order. See Sears, 85 Ill. 2d at 260.
Neither IBT s nor the Commission s actions have been inconsistent
with the original order.
Finally, petitioners contend that the Commission retains
jurisdiction until the parties seek appeal and, therefore,
petitioners were free to petition the Commission to reconsider its
ruling. We fail to see the logic of this argument. Petitioners
overlook the jurisdictional requirement of making an application
for rehearing in order to perfect an appeal. If the litigant fails
to timely file an application for rehearing, the Commission retains
jurisdiction. To accept petitioner s argument would eliminate the
necessity of filing a petition for rehearing, contrary to the
statutory scheme. Because the Act requires that a party must file
a petition for rehearing before bringing an appeal, petitioners
argument fails.
We find no jurisdiction over these appeals and therefore
dismiss them.
Appeal No. 2--97--0963, dismissed.
Appeal No. 2--97--0964, dismissed.
Appeal No. 2--97--0965, dismissed.
THOMAS and RATHJE, JJ., concur.