Cox v. Board of Fire and Police Com'rs of City of Danville

• Decision Date: 09 June 1983
• Docket Number: No. 57146,57146
• Citation: 451 N.E.2d 842,96 Ill.2d 399,71 Ill.Dec. 688
• Parties: , 71 Ill.Dec. 688 Michael COX, Appellant, v. The BOARD OF FIRE AND POLICE COMMISSIONERS OF the CITY OF DANVILLE et al., Appellees.
• Court: Illinois Supreme Court

Page 842

451 N.E.2d 842

96 Ill.2d 399, 71 Ill.Dec. 688

Michael COX, Appellant, v. The BOARD OF FIRE AND POLICE COMMISSIONERS OF the CITY OF DANVILLE et al., Appellees.

No. 57146.

Supreme Court of Illinois June 9, 1983.

Hardin W. Hawes, Sebat, Swanson, Banks, Lessen & Garman, Danville, for appellant.

Thomas J. Fahey, Manion, Janov, Edgar, Devens & Fahey, Ltd., Danville, for appellees.

GOLDENHERSH, Justice:

Plaintiff, Michael Cox, filed an action under the Administrative Review Act (Ill.Rev.Stat.1979, ch. 110, par. 264 et seq.) to review the decision of defendant, the board of fire and police commissioners of the city of Danville, discharging him from his employment as a police officer. The circuit court of Vermilion County, upon allowance of defendant's motion, dismissed the action on the ground that it was not timely commenced. The appellate court affirmed the order (107 Ill.App.3d 704, 63 Ill.Dec. 355, 437 N.E.2d 1277), and we granted plaintiff's petition for leave to appeal (87 Ill.2d R. 315).

It is alleged in the complaint that the chief of police of Danville had filed a complaint seeking plaintiff's discharge; that following a hearing before the defendant board plaintiff was found not guilty of the charges made; that on administrative review the decision was reversed and the cause remanded with instructions. Upon remand, defendant entered an order discharging plaintiff. On May 13, 1981, copies of the order were placed into the United States mail with proper postage attached, and properly addressed to plaintiff and his attorney. They received the documents on May 15, 1981. On June 17, 1981, at about 9:30 a.m., plaintiff's attorney presented to the office of the clerk of the circuit court of Vermilion County a complaint for administrative review together with unsigned summonses directed to each of the proper parties defendant to the administrative review action and affidavits concerning their addresses. On June 18, 1981, the clerk signed and sent the summonses by mail to the defendants.

Defendants moved to dismiss on the ground that under section 4 of the Administrative Review Act the action was not timely filed. Section 4 (Ill.Rev.Stat.1979, ch. 110, par. 267, now Ill.Rev.Stat.1981, ch. 110, par. 3-103), in pertinent part provided:

"Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby."

The circuit court found that plaintiff had filed the action within the 35-day period fixed by the statute, but because the summonses were not issued until the 36th day, the motion to dismiss was allowed.

The appellate court affirmed, holding that although the complaint was timely filed, failure to issue the summonses until the following day rendered the commencement of the action untimely. The court stated that had the clerk's personnel been advised of the exigencies of the circumstances and failed to issue the summonses immediately "a strong case would be made for disregarding the requirement that summons issue." 107 Ill.App.3d 704, 709, 63 Ill.Dec. 355, 437 N.E.2d 1277.

The parties are in agreement that, in computing the 35-day period provided in section 4, the first day is excluded and the last day included. (Ill.Rev.Stat.1979, ch. 1, par. 1012.) Thus, June 17, 1981, was the 35th day after the mailing of the copy of defendant's decision.

Plaintiff argues that we must first decide whether the 35-day period commenced with the date of mailing of the notice of decision or whether the act of mailing served merely to create a rebuttable presumption that the notice of decision was received. Section 4 provided:

"The method of service of the 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 either when personally delivered or when deposited in the United States mail, in a sealed envelope or package, with postage prepaid, addressed to the party affected thereby at his last known residence or place of business." (Ill.Rev.Stat.1979, ch. 110, par. 267.)

Citing Pearce Hospital Foundation v. Illinois Public Aid Com. (1958), 15 Ill.2d 301, 154 N.E.2d 691, and Varnes v. Lentz (1975), 30 Ill.App.3d 806, 332 N.E.2d 639, plaintiff argues that there is authority for the proposition that the time commenced to run from receipt of the notice. We do not agree. The issue presented in Pearce Hospital and Varnes was whether the order of the agency was an administrative decision from which an appeal could be taken and did not present the question whether the statutory...