dissenting:
The backdrop of this appeal is that the Illinois Commerce Commission (ICC) order which appellant seeks to overturn was not entered until more than 9 years after the appellant filed his complaint before the ICC. In view of the time it took the ICC to reach a decision in this matter, its insistence upon interpreting section 68 of the Public Utilities Act to require the appellant to complete all procedures required for this appeal and provided for by that ambiguous statute within a maximum period of 30 days, instead of 35 days, is incongruous.
Under the majority’s interpretation of the statute, service of the notice of appeal on the ICC is permitted as late as the 30th day, as long as a copy of the notice is filed with the court clerk on the same day. Thus, section 68 does not require that the ICC receive notice of the appeal any earlier than it did here. Contrary to the majority’s reading of the statute, however, the proper construction of section 68 reveals that the legislature intended that the ICC and the appellant each have 5 days after service of notice of appeal on the ICC to file their respective documents in circuit court — for the ICC to file a certified copy of its order, and for the appellant to file a copy of the notice of appeal. This intent is defeated by the majority’s interpretation, which can operate to reduce the 5-day period for the appellant to less than 5 days. For instance, if the notice of appeal were served upon the ICC between the 25th and 30th day, the appellant would have less than 5 days to file a copy in the circuit court, even though the ICC would still have 5 days to file a certified copy of its order. In addition, the majority’s reading of the statute would increase the likelihood that the appellant’s filing in the circuit court would precede that of the ICC — the very result which the majority is attempting to prevent.
An analysis of the structure of section 68 supports the appellant’s position. The opening sentence of the statute provides that, within 30 days after service of the ICC order, a party “may appeal to the circuit court.” The next reference to what is required of the appellant comes in the fourth sentence of the section,, which directs that the party taking the appeal file written notice of the appeal with the ICC. The following two sentences describe procedures which must be complied with by both the ICC and the appellant within a specified time after service of notice of appeal on the ICC. These sentences also require the ICC to provide a certified copy of its order for the circuit court files within 5 days after the appellant serves notice of the appeal on the ICC. Then, in the seventh sentence, the requirement appears that the appellant file with the court clerk a copy of the notice of appeal served upon the ICC. Had the legislature intended that both service of the notice on the ICC and filing of the copy in the circuit court occur within the 30-day period, these requirements would have been set forth in the same sentence, or at least in successive sentences, instead of being separated by sentences describing other procedures the ICC and appellant must complete after service of the notice of appeal, but not necessarily within the 30-day period. Moreover, that the fourth sentence uses the language, “The party taking such appeal,” while the seventh sentence uses the language, “the party serving such notice of appeal,” strongly indicates that the appeal is “taken” when the notice of appeal is served on the ICC.
Further, the eighth sentence of the statute provides that no circuit court shall permit anyone to appeal any ICC decision unless he does so in the manner prescribed by section 68. Thus, the purpose of requiring the appellant to file a copy of the notice given the ICC with the court clerk appears to be advisory — that is, to inform the circuit court that the notice of appeal has properly been served upon the ICC. It is the equivalent of filing a proof of service. It can make no difference to the circuit court whether it receives the information on the 35th day or before that time. Whether the appellant is given a maximum of 30 days to notify the ICC and file a copy of the notice to the ICC in the circuit court, or 30 days in which to notify the ICC and an additional 5 days for filing the copy in the circuit court, both the certified copy filed by the ICC and the copy of notice filed by the appellant will reach the circuit court within not more than 5 days of each other. I am aware of no procedure in a circuit court clerk’s office which will operate more expeditiously or efficiently, nor will the practice in the circuit court be more orderly, if the copy of the notice served on the ICC is filed with the court clerk within a maximum of 30 days, instead of within a maximum of 35 days.
The majority relies on the axiom that notice requirements for appeals from ICC orders traditionally have been strictly construed. However, the only notice which the statute provides for is the written notice of appeal to be served on the ICC. The filing which the statute provides for in the circuit court is merely the perfunctory act of filing a copy of the notice served on the ICC. Thus, even if we construe the notice requirements of the statute strictly, as the majority urges, we still would be compelled to hold that the only notice required was timely because it was served within the 30-day time period set forth in section 68.
The majority’s interpretation forecloses appeals on a wholly technical ground, without serving the interests of justice. And I particularly question the wisdom of that interpretation in this case, which involves the protection of consumer interests and could preclude a large number of Wilmette telephone subscribers from contesting alleged improper charges for their telephone service.