dissenting:
I cannot agree that the City of Peoria failed to perfect its appeal in a timely manner, and I must therefore, respectfully dissent.
An appeal from a decision of the Illinois Commerce Commission to the circuit court begins by filing a notice of appeal with the Commission in the same way that an appeal from a judgment of the circuit court to the appellate court begins by filing a notice of appeal with the clerk of the circuit court. (Compare Ill. Rev. Stat. 1979, ch. 1112/3, par. 72, with 73 Ill. 2d R. 303(a).) Both statutes allow 30 days for the notice of appeal to be filed, and under both provisions, the Illinois appellate courts have held that the mailing of a notice of appeal within the 30-day period is sufficient to perfect the appeal, regardless of the date the notice is received. (Holesinger v. Dubuque Feeder Pig Co. (1982), 104 Ill. App. 3d 39, 42, 432 N.E.2d 645, 649 (section 1.25 of the construction-of-statutes act (Ill. Rev. Stat. 1979, ch. 1, par. 1026) “evince[s] a general policy to equate filing with mailing”); Department of Conservation v. Baltimore & Ohio R.R. Co. (1982), 103 Ill. App. 3d 417, 431 N.E.2d 441.) So, Justice Stouder correctly holds that the notice of appeal is considered to have been filed with the Commission within, the réquired 30 days since it was mailed to the Commission with 30 days. See, e.g., Alton v. Byerly Aviation, Inc. (1977), 68 Ill. 2d 19, 368 N.E.2d 922 (relying on section 1.25 of the construction-of-statutes act, court held that evidence of mailing notice to Industrial Commission within statutory period was sufficient to comply with filing requirement of section 5(a) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.5(a)).
Section 68 of the Public Utilities Act contains an additional requirement that the party seeking review must, within five days of serving notice upon the Commission, file a copy of the notice of appeal with the clerk of the court to which the appeal is taken, and the Commission must, within five days of the filing of the notice, file with the clerk of the circuit court a copy of the order appealed from. Such appeals are to be tried “according to the rules governing other civil cases, so far as the same are applicable.”
Under Supreme Court Rule 303 governing civil appeals, within five days after the filing of the notice of appeal, the circuit clerk must transmit a copy of the notice to the reviewing court, and within 14 days after filing the notice of appeal, the appellant must file a docketing statement in the reviewing court. (73 Ill. 2d R. 303(a), (g).) These provisions are similar to the five-day provisions of section 68 of the Public Utilities Act. The purpose of the requirement that a copy of the notice of appeal be filed in the appellate court has been said-to be, in part, “to afford the appellate courts greater authority to supervise the progress of an appeal ***.” (Ill. Ann. Stat., ch. 110A, par. 303, Historical and Practice Notes, at 323 (Smith-Hurd Supp. 1981).) It is well established the only action required to give the appellate court jurisdiction of an appeal is the timely filing of the notice of appeal in the circuit court. (Theobault-Olson Co. v. Petta (1972), 6 Ill. App. 3d 537, 286 N.E.2d 163.) Thus, the filing of a copy in the appellate court is not a prerequisite to the appellate court’s acquisition of jurisdiction. Similarly, there is no logical reason to hold that the filing of a certified copy of the notice of appeal with the circuit clerk is an essential element of appellate jurisdiction in an appeal from the Commission. The purpose of the requirement is merely to apprise the circuit court that an appeal from the Commission has been commenced. Applying the rules governing civil appeals, I would hold that the circuit court acquired jurisdiction of the City’s appeal as soon as the notice of appeal was timely filed.
In any event, there is no reason for this court to shorten the 30-day period for filing the notice of appeal by reading into section 68 a requirement that the copy of the notice must be filed with the circuit clerk within the 30-day period. The statute plainly says that the copy must be filed within five days after the notice of appeal is filed. (See Department of Conservation v. Baltimore & Ohio R.R. Co. (1982), 103 Ill. App. 3d 417, 422, 431 N.E.2d 441, 445; Hoffman v. Illinois Commerce Com. (1978), 62 Ill. App. 3d 85, 88, 379 N.E.2d 42, 44 (dissent).) I believe this language should be interpreted to mean what it says instead of what it does not say. Thus, I would hold that the City had five additional days to file the copy, and that the appeal should not have been dismissed.