Kennedy v. State Pub. Utilities Comm'n

• Citation: 286 Ill. 490,122 N.E. 111
• Decision Date: 20 February 1919
• Docket Number: No. 12349.,12349.
• Parties: KENNEDY et al. v. STATE PUBLIC UTILITIES COMMISSION et al.
• Court: Supreme Court of Illinois

286 Ill. 490

122 N.E. 111

KENNEDY et al.

v.STATE PUBLIC UTILITIES COMMISSION et al.

No. 12349.

Supreme Court of Illinois.

Feb. 20, 1919.

Appeal from Circuit Court, Sangamon County; E. S. Smith, Judge.

Proceeding by A. G. Kennedy and others before the State Public Utilities Commission against the De Kalb-Sycamore Electric Company. From an order requiring the Commission to file record in the circuit court on appeal, the Commission and Electric Company appeal. Affirmed.

Carter, J., dissenting.

Edward J. Brundage, Atty. Gen., George T. Buckingham, of Chicago, W. E. Trautmann, of E. St. Louis, and A. D. Rodenberg, of Springfield, for appellant State Public Utilities Commission.

John Faissler, of Sycamore, for appellant De Kalb-Sycamore Electric Co.

A. G. Kennedy, of De Kalb (H. W. Prentice, of De Kalb, of counsel), for appellees.

CARTWRIGHT, J.

A. G. Kennedy and others filed a complaint with the Public Utilities Commission concerning the steam heat rates charged by the De Kalb-Sycamore Electric Company in the city of De Kalb, and the commission, after a hearing, entered an order on April 30, 1917. The order was served upon the parties interested shortly after it was entered, and within 30 days after the date of the order, Kennedy, for himself and associates, filed with the clerk of the circuit court of Sangamon county a notice of appeal and a copy of the notice with the secretary of the commission. Upon receipt of the notice the secretary wrote to Kennedy that the approximate cost of preparing the record would be $225, and upon receipt of that amount he would file the record as prescribed by law. The money demanded was not paid, and the cause was set for hearing in the circuit court on October 9, 1917, when the electric company filed a motion, supported by affidavit, to have the appeal dismissed for a failure to pay for the record and have it filed as required by law. The parties appearing filed a counter motion to require the commission to file the record. The cause was continued until May 15, 1918, when the motions were heard, and the court denied the motion to dismiss the appeal, and ordered the commission to file the record within 5 days. From that order the electric company and commission appealed to this court.

The act entitled ‘An act to provide for the regulation of public utilities' (Laws 1913, p. 459), provides for uniform and reasonable rates for service by a public utility, and in section 64 provides for a complaint by any person setting forth any act or thing done or omitted to be done in violation or claimed to be in violation of any provision of the act, and section 65 provides for a hearing of the complaint. Section 68 provides that within 30 days after the service of any order or decision of the commission any person or corporation affected by the order or decision may appeal to the circuit court of Sangamon county and shall file with the secretary of the commission written notice of the appeal. The commission, upon the filing of such notice of appeal, is required, within 5 days thereafter, to file with the clerk of the circuit court a certified copy of the order appealed from and within ten days thereafter the record provided by the statute. That record is to be a transcript of the testimony, together with all exhibits or copies thereof introduced and all information secured by the commission on its own initiative and considered by it in rendering its order or decision, and of the pleadings, record and proceedings in the case. The section containsa proviso that the person or corporation taking the appeal, and the commission, may stipulate that a specified portion only of the evidence shall be certified to the court.

The duty of filing with the clerk of the court, in case of appeal, the transcript of the record within a specified time is imposed upon the commission, and not upon any party to the proceeding, and the question to be decided is whether the commission is entitled to fees for the making of the transcript and excused from performing the duty enjoined upon it until such fees are paid. Fees for the performance of any duty imposed upon a public officer are only authorized where specifically provided for and fixed by statute, but where they are so provided for and fixed the officer is not required to perform the duty until his fees are paid. People v. Rockwell, 2 Scam. 3;People v. Harlow, 29 Ill. 43;Meserve v. Delaney, 112 Ill. 353. The Fees and Salaries Act, which covers in a general way the fees which may be charged and collected by public officers, does not authorize the charge made in this case, and the only ground upon which it is claimed is section 7 of the Public Utilities Act, which authorizes the commission to charge and collect the following fees:

‘For copies of papers and records not required to be certified or otherwise authenticated by the commission, ten cents for each folio; for certified copies of evidence and proceedings before the commission or of official documents and orders filed in its office fifteen cents for each folio, and one dollar for every certificate under seal affixed thereto.’

There is a proviso...