dissenting:
I respectfully dissent from the majority opinion, primarily because I believe that the majority’s interpretation of the statute, specifically section 3 — 101 of the Code of Civil Procedure, produces an untenable result. Reading the statute to require judicial review while rehearing is pending before the administrative agency makes a mockery of the rehearing procedure provided for in the Retailers’ Occupation Tax Act. However, before discussing what I feel are the faults of the majority’s reading of section 3 — 101, I will add that, while I agree that the circuit court had a right to review the timeliness of the taxpayer’s request for judicial review, I disagree that it was appropriately considered because of a lack of subject-matter jurisdiction.
The matter of timeliness may be properly considered when raised in the trial court prior to a trial on the merits of the case, and there is no mandate that timeliness be raised at the first possible opportunity to do so. Consequently, timeliness may properly be raised as a defense in the opposing party’s answer. This does not, however, make the question of timeliness a jurisdictional matter, as the majority maintains. Too often, in my opinion, the word “jurisdiction” is misused and certainly overused. The time-bar of the statute of limitations does not deprive a court of jurisdiction. The statute of limitations operates to extinguish the remedy, not to extinguish the cause of action itself, and is said to be a rule of convenience. (See 51 Am. Jur. 2d Limitation of Actions sec. 13 (1970).) When errors are not jurisdictional they can be waived, as is certainly true with the statute of limitations. Furthermore, when an error can be waived it is not jurisdictional. The failure to raise error should not disturb the finality of a • decision.
The majority cites Dorr-Wood, Ltd. v. Department of Public Health (1981), 99 Ill. App. 3d 170, 425 N.E.2d 499, for the proposition that subject matter jurisdiction can be raised “at any time in any court either directly or collaterally.” I agree with this statement; however, Dorr-Wood involved a situation where the Administrative Review Law was found not applicable. This, in my mind, is a question of subject-matter jurisdiction and differs from this case, where the Revenue Act explicitly adopts the Administrative Review Law (see Ill. Rev. Stat. 1983, ch. 120, par. 451), and the reviewability of its decisions is unquestionable.
I, therefore, would have held that even if review of this matter were time barred by statute, at least its reviewability is unquestionable, and, because it is reviewable, the circuit court did not lack subject-matter jurisdiction. The question of timeliness is a potential bar to review and could be properly raised in the trial court, but I do not believe that the failure to timely file deprives the reviewing court of jurisdiction. Such cases as People ex rel. Olin Corp. v. Department of Labor (1981), 95 Ill. App. 3d 1108, 420 N.E.2d 1043, Hoffman v. Department of Registration & Education (1980), 87 Ill. App. 3d 920, 410 N.E.2d 291, and Johnson v. State Police Merit Board (1968), 99 Ill. App. 2d 458, 241 N.E.2d 468, illustrate the use of jurisdictional language in cases where the timeliness of the filing does not raise the crucial issue of jurisdiction. In fact, the predicate case Pearce Hospital Foundation v. Illinois Public Aid Com. (1958), 15 Ill. 2d 301, 154 N.E.2d 691, does not characterize the timeliness in seeking judicial review as being jurisdictional. Article VI, section 9, of the 1970 Constitution is general in its conferral of jurisdiction (Ill. Const. 1970, art. VI, sec. 9) upon the circuit courts of Illinois. Subject-matter jurisdiction, i.e., the general power to hear controversies of the type presented here, clearly exists by virtue of constitutional and statutory authority.
The majority’s interpretation of sections 3 — 101 and 3 — 103 of the Administrative Review Law requires judicial review of an administrative decision while rehearing before the Department of Revenue is still pending. This result is ludicrous and contravenes several major tenets of administrative law. I would have interpreted the statute to require that the action for review be commenced within 30 days after the rehearing procedure has terminated, so long as the rehearing procedure is instituted within 35 days after the final assessment has been served upon the taxpayer. This interpretation both furthers the goals of exhaustion and finality and still expedites the collection of revenues which the majority recognizes as an important goal of the legislature.
To sustain the holding of the majority would require the taxpayer to (1) institute judicial review when all administrative remedies have not yet been exhausted; (2) to seek judicial review when the decision of the administrative agency is not final, and (3) would permit simultaneous administrative and judicial review. The legislature has seemingly cleverly avoided these problems by designating all administrative rehearing procedures when “the particular statute permits an application for rehearing *** to be filed with the administrative agency for an indefinite period of time” as “new proceeding[s].” (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101.) Merely appending a new label to rehearing proceedings does nothing to change their character or the fact that the statute clearly authorizes judicial review of nonfinal administrative determinations. If it is a rehearing procedure in terms of function served, it is a continuation of the administrative process, not a new proceeding.
It is the general rule in Illinois that administrative remedies must be exhausted before resort to judicial review is had to challenge an administrative decision, except where multiple remedies exist before the same administrative agency and at least one has been exhausted, where irreparable harm will result from further pursuit of administrative remedies, or where it would be patently useless to seek relief before the administrative agency. (Graham v. Illinois Racing Board (1979), 76 Ill. 2d 566, 394 N.E.2d 1148.) I believe that once Fredman Brothers made an application for a rehearing within 35 days after the final assessment, as is authorized in the statute, its administrative remedies were not exhausted, and, therefore, the 35-day limitation period to seek judicial review did not begin to run until Fredman Brothers was either granted or denied a rehearing. Any other interpretation is inconsistent with the concept of finality in administrative review.
Undeniably, section 3 — 101 states that when there is an indefinite time allowed for making application for rehearing, this does not postpone the time when the administrative decision would otherwise become final. Common sense dictates that in terms of finality the assessment is not truly final until the application for rehearing is denied or, if the application is granted, when the Department issues its new assessment based on the outcome of the rehearing. That part of section 3 — 101 dealing with an indefinite time to apply for rehearing is ambiguous and should be held unenforceable and of no effect; otherwise, the legislature will have left us with another of Justice Cardozo’s famous “Serbonian Bogs.”
To read section 3 — 101 as the majority does negates the administrative rehearing procedure provided for in the Revenue Act and clearly does not give effect to the true intent of the legislature, whose intention was to provide a rehearing procedure for proceedings under the Retailers’ Occupation Tax Act.
I would reverse the circuit court and hold that the taxpayer’s request for judicial review was timely filed and he is, therefore, entitled to an adjudication on the merits.