specially concurring:
In this case, the City of Peoria wanted to appeal an order of the Illinois’Commerce Commission to the Peoria Circuit Court. To accomplish this appeal, the City mailed a notice of appeal to the Commission on the 30th day. This notice was received by the Commission three days later. On the 34th day from the entry of the order, a copy of the notice of appeal was filed with the Peoria circuit clerk. The majority opinion concludes that the appeal was not perfected in a timely manner.
The City argues that the statute which requires the filing of the notice with the circuit clerk within five days of the filing of the notice with the Commission extends the ultimate filing time from 30 to 35 days. I agree with the majority that the 30-day period is not thereby extended.
I further concur with the result reached which affirms the trial court’s dismissal of the appeal. Because of language in the majority opinion, however, and because of its reliance on the cases of Department of Conservation v. Baltimore & Ohio R.R. Co. and Hoffman v. Illinois Commerce Com., I believe that clarification is needed regarding the jurisdictional issue of perfecting an appeal. An analysis of the majority opinion along with the cases cited would cause one to believe that the mailing of a notice of appeal to the court within the 30-day period is sufficient without regard to when that notice of appeal actually reaches the office of the clerk of the court. I believe that to be an erroneous proposition of law.
The statute provides that a party may appeal to the circuit court within 30 days. The appeal is not perfected by mailing unless the mailed item arrives at the circuit clerk’s office within the 30-day period. There is no statutory language that would authorize a mail notice in lieu of an actual filing. Rules of the Illinois Commerce Commission which authorize service of papers by mail cannot confer jurisdiction on the court. In the case at hand, the majority opinion would approve of a mailing to the court within 30 days and without regard to when that notice is actually received by the court. To that extent, I disagree with my colleagues. Since the majority opinion finds that the appeal was not perfected, however, I concur with the result reached.