Second Federal Sav. and Loan Ass'n of Chicago v. Home Sav. and Loan Ass'n

• Decision Date: 08 May 1978
• Docket Number: Nos. 77-575,77-576,77-737 and 77-738,s. 77-575
• Citation: 376 N.E.2d 349,17 Ill.Dec. 350,60 Ill.App.3d 248
• Parties: , 17 Ill.Dec. 350 SECOND FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHICAGO, Plaintiff-Appellant, v. HOME SAVINGS AND LOAN ASSOCIATION et al., Defendants-Appellees. PROSPECT FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff-Appellant, v. UNITY SAVINGS ASSOCIATION et al., Defendants-Appellees. SECOND FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff-Appellant, v. HOME SAVINGS AND LOAN ASSOCIATION et al., Defendants-Appellees. PROSPECT FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff-Appellant, v. UNITY SAVINGS AND LOAN ASSOCIATION et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 349

376 N.E.2d 349

60 Ill.App.3d 248, 17 Ill.Dec. 350

SECOND FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHICAGO, Plaintiff-Appellant, v. HOME SAVINGS AND LOAN ASSOCIATION et al., Defendants-Appellees.

PROSPECT FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff-Appellant, v. UNITY SAVINGS ASSOCIATION et al., Defendants-Appellees.

SECOND FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff-Appellant, v. HOME SAVINGS AND LOAN ASSOCIATION et al., Defendants-Appellees.

PROSPECT FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff-Appellant, v. UNITY SAVINGS AND LOAN ASSOCIATION et al., Defendants-Appellees.

Nos. 77-575, 77-576, 77-737 and 77-738.

Appellate Court of Illinois, First District, First Division.

May 8, 1978.

[17 Ill.Dec. 351] Russell, Bridewell, Sembower & Cook, Chicago (David A. Bridewell and Robert C. Smith, Jr., Chicago, of counsel), for plaintiffs-appellants

William J. Scott, Atty. Gen., Chicago (Jerome J. Webb, Asst. Atty. Gen., of counsel), for defendant-appellee, Commissioner of Sav. and Loan Assns.

Hall, Meyer, Fisher, Holmberg & Snook, Waukegan (John R. Sloan, Waukegan, of counsel), for defendant-appellee, Home Sav. and Loan Assn. of Waukegan.

Morrissey, Kabat, Lillig & Kemp, Oak Brook (Walter W. Morrissey, Oak Brook, of counsel), for defendant-appellee, Unity Sav. Assn.

GOLDBERG, Presiding Justice.

This is a consolidated appeal by Second Federal Savings and Loan Association (Second Federal) and Prospect Federal Savings and Loan Association (Prospect Federal), (collectively referred to as "plaintiffs") from trial court orders dismissing their individual complaints for administrative review of four decisions of the Commissioner of Savings and Loan Associations (Commissioner) and the Illinois Savings and Loan Board (Illinois Board).

Appeals Nos. 77-575 and 77-737 involve an application by Home Savings and Loan Association of Waukegan (Home) to relocate its business office to Fox Lake, Illinois. Appeals Nos. 77-576 and 77-738 involve an

[17 Ill.Dec. 352] application by Unity Savings Association of Schaumburg (Unity) to relocate its business office to Lombard, Illinois.

THE HOME CASES

On or before June 30, 1976, Home filed with the Commissioner an application requesting permission to relocate its principal office from Waukegan to Fox Lake, Illinois, while retaining a facility at its present location in Waukegan. Second Federal was then operating an office in Fox Lake. On June 30, 1976, notice of Home's application was published in the Chicago Daily News, a newspaper of general circulation in Illinois, pursuant to the Illinois Savings and Loan Act (Act) and the Rules and Regulations of the Commissioner. (Ill.Rev.Stat.1975, ch. 32, par. 744(h)(4) and Rules and Regulations of the Commissioner, art. XI, sec. 2.) In addition to announcing the planned relocation, the notice stated, "Any persons objecting to the Application as hereinabove set forth may in person or by Attorney submit notice of objection to the application within ten (10) days following the date of publication of this notice. Objecting parties will be notified of the procedure for perfecting said objections." This additional information was supplied in accordance with the Rules and Regulations of the Commissioner, article XI, section 3.

According to Second Federal's brief, it first learned of Home's application on August 3, 1976. On August 4, 1976, Second Federal wrote two letters to the Commissioner. The first requested a copy of the Home application be made available so that Second Federal might prepare its formal objections. The second letter set forth the initial objections to the application and requested the matter be set for hearing. The principal objection advanced by Second Federal was that the publication of notice in the Chicago Daily News did not meet the requirements of article XI, section 2 of the Rules and Regulations of the Commissioner, which provides:

"Upon receipt of the application, the Commissioner shall review the file and, if complete to his satisfaction, shall authorize the applicant to publish in newspapers of general circulation in the State of Illinois, notice of filing of its applications. Publication in the manner and on forms prescribed by the Commissioner in both the community of the new office and the community of the present office shall be made within 15 days of the date of authorization."

Specifically, Second Federal contended that publication in the Daily News was not publication in either the community of the new office or the community of the present office since the Daily News was not published in those areas.

On August 9, 1976, the Commissioner responded that the publication of notice met the requirements of article XI, sections 2 and 3 of his rules and regulations as further defined by a "letter of general circulation" dated April 7, 1976. Article XI, section 3 provides in part:

"Any association or person wishing to object to any application filed pursuant to Section 1 hereof and within the time requirements set forth in the applicant's authorized published notice shall:

"(a) File in triplicate on form or forms prescribed by the Commissioner its verified objections at the Springfield Office of the Commissioner."

The April 7, 1976 letter further commented on article XI, sections 2 and 3 as follows:

"It should also be noted that the time period in which objectors may file their notice of intent to object has been shortened from 30 days to 10 days from the date of publication. On the same subject, it has been determined by this Office that notice published in any of the three (3) Chicago daily newspapers (Tribune, Sun Times or Daily News) is appropriate for relocation or facility sites located in the Chicago SMSA." ¹

The Commissioner went on to state that Second Federal's correspondence notifying the Commissioner of its objection was received 34 days after publication and, therefore, its "request to review the file and have the matter set down for hearing must be denied."

On August 10, 1976, Second Federal filed a petition with the Illinois Board for review of the Commissioner's denial of the requests. The Board adopted a resolution on August 23, 1976, which denied the petition. Second Federal then filed its first complaint for administrative review. The complaint asserted that the Commissioner's actions were arbitrary, capricious and an abuse of discretion and that the notice published in the Chicago Daily News was contrary to the Commissioner's own rules. Further, Second Federal claimed that the ten day requirement for filing notice of intent to object was arbitrary, capricious and unreasonable. The complaint prayed that the orders of the Commissioner and the Board be reversed and a stay order issued to prevent the relocation until Second Federal's objections were filed and a hearing on the relocation was held. The trial court granted the stay order.

The Commissioner moved the trial court to dismiss the complaint for failure to state a cause of action. The motion asserted that publication in the Chicago Daily News was proper within article XI, section 2 of the Commissioner's rules in that the Daily News was a newspaper of general circulation in both Fox Lake (location of new office) and Waukegan (location of existing office).

After a hearing on the motion, the trial court found that publication in the Daily News was proper and the ten day requirement was not arbitrary or unreasonable. An order was entered on February 14, 1977, dismissing the complaint and vacating the stay order. Second Federal filed an appeal (No. 77-575) and now contends that the publication of notice did not meet the statutory requirements and the ten day requirement and the Commissioner's refusal to grant Second Federal access to the application were arbitrary, capricious and unreasonable.

On February 28, 1977, the Commissioner entered an order approving Home's application for relocation. Second Federal filed a complaint for administrative review of that order. The complaint was dismissed on the motion of the Commissioner on the grounds that Second Federal had failed to exhaust its administrative remedies by failing to file its notice of intent to object within the ten day period allowed. From this dismissal, appeal No. 77-737 was taken.

THE UNITY CASES

The facts in the Unity situation are very similar to those in the Home matter. The difference is essentially one of dates. On or before December 1, 1976, Unity filed its application with the Commissioner requesting permission to relocate its principal office from Schaumburg to Lombard, Illinois, while retaining a facility at its present location in Schaumburg. Prospect Federal was then operating an office in Lombard.

On December 1, 1976, notice of Unity's application was published in the Chicago Tribune. According to Prospect Federal, it first learned of the proposed relocation on December 23, 1976. Prospect Federal wrote the Commissioner that same day requesting a copy of the application so that it might prepare its formal objections. On December 30, 1976, Prospect notified the Commissioner that it considered publication in the Chicago Tribune to be improper and that its objections should be allowed.

The Commissioner and the Board denied Prospect Federal's request to have its objections heard. A complaint seeking administrative review of these orders was then filed in the circuit court. The Commissioner made a motion to dismiss the complaint which was granted for the same reasons as was the motion to dismiss the initial complaint of Second Federal. Appeal No. 77-576 followed.

Prospect Federal's second appeal (No. 77-738) is from the Commissioner's order approving Unity's application for relocation. Unity's complaint for administrative review of that order was dismissed, and appeal followed.

Turning to the merits of both situations, the same issues are raised by Second Federal and Prospect Federal. They urge first that publication in one of the daily...