JUSTICE McCULLOUGH
delivered the opinion of the court:
We consider here the question of subject-matter jurisdiction of the circuit court. On June 12, 1986, the Industrial Commission (Commission) affirmed an arbitrator’s award in favor of claimant for temporary total disability. The Commission order also recited that the probable cost of the record to be filed as part of any review of the decision of the Commission was $35. Claimant decided to seek review.
On July 1, 1986, claimant presented a handwritten request to the Commission asking that payment of the fee for preparation of the record be waived together with a notice setting the motion for hearing on July 10, 1986. Before receiving a ruling on that motion, however, on July 3, 1986, claimant filed an application to sue or defend as a poor person with the circuit court of Cook County requesting review of the Commission’s decision.
On the same day, the application to sue and defend as a poor person was considered ex parte and granted by a judge of the circuit court of Cook County, as evidenced by a check mark in the box labeled “application granted” on the face of the application, followed by the signature of the trial judge and a file stamp bearing the trial judge’s name also dated July 3, 1986. The record also reveals that summons issued and a certificate of mailing was made on July 3, 1986, although there is no written request for issuance of summons contained in the record.
Claimant’s motion before the Commission was heard and denied in a written order entered on August 4, 1986. Upon payment of the $35 fee, the Commission issued a receipt for payment of the probable cost of the record on August 19, 1986, which was subsequently filed with the circuit court on August 22,1986.
Respondent moved to dismiss the circuit court proceeding for lack of subject-matter jurisdiction. The trial court granted the motion and claimant filed a timely notice of appeal.
On appeal the parties raise the issue of whether the circuit court lacked subject-matter jurisdiction because summons was issued prior to verification by the circuit court clerk that the probable cost of the record had been paid. On our own motion, this court raised the issue of the effect, if any, of the circuit court’s order allowing claimant’s application to sue or defend as a poor person either prior to or simultaneous with the issuance of summons.
The cases are legion which state that failure to strictly comply with the provisions of section 19(f)(1) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(f)(1)) deprives the circuit court of subject-matter jurisdiction. (Malone v. Industrial Comm’n (1986), 141 Ill. App. 3d 116, 489 N.E.2d 1167.) Section 19(f)(1) of the Act provides in relevant part:
“[N]o summons shall issue unless the party seeking to review the decision of the Commission shall exhibit to the clerk of the Circuit Court proof of payment by filing a receipt showing payment or an affidavit of the attorney setting forth that payment has been made of the sums so determined to the Secretary or Assistant Secretary of the Commission, except as otherwise provided by Section 20 of this Act.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(f)(1).)
Strict compliance with the Act has been relaxed only to the extent a receipt need not actually be exhibited as long as the circuit clerk has assured himself the probable cost of the record has actually been paid prior to the issuance of summons. Malone, 141 Ill. App. 3d 116, 489 N.E.2d 1167.
It is conceded by claimant the requirements of section 19(f)(1) were not met. Claimant argues, however, her request to waive the fee for issuance of summons which was pending before the Commission when review to the circuit court was sought is sufficient to obviate the need to strictly comply with section 19(f)(1), since the 20-day statutory period for filing for review of the Commission decision was running and, according to claimant, no commissioner was immediately available to consider her motion to waive the fee.
Section 20 of the Act provides in pertinent part:
“If the Commission shall, before or after any hearing, proceeding, or review to any court, be satisfied that the employee is a poor person, and unable to pay the costs and expenses provided for by this Act, the Commission shall permit such poor person to have all the rights and remedies provided by this Act, including the issuance and service of subpoenas; a transcript of testimony and the record of proceedings at hearings before an Arbitrator or the Commission; the right to have the record of proceedings certified to the circuit court; the right to the filing of a written request for summons; and the right to the issuance of summons, without the filing of a bond for costs and without the payment of any of the costs provided for by this Act.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.20.)
The question is whether a pending motion seeking relief from payment of costs filed with the Commission relieves a party from complying with section 19(f)(1) before a petition for review in the circuit court may be filed and summons issue. We hold that it does not.
In Moweaqua Coal Mining & Manufacturing Co. v. Industrial Comm’n (1926), 322 Ill. 403, 153 N.E. 678, the supreme court stated:
“The statute says plainly that no praecipe for a writ of certiorari may be filed and no writ shall issue until the parties seeking the writ shall exhibit to the circuit clerk a receipt showing payment of the amount of the probable cost of the record to be filed as a return to the writ of certiorari. The purpose of the statute is to coerce the payment of an amount sufficient to cover the cost of the record which the Industrial Commission must prepare. The legislature has seen fit to make the payment of this amount a condition precedent to the issuance of the writ. The language of the statute is plain and there is no room for construction. The clerk had no authority to issue the writ and it was properly quashed on motion.” (322 Ill. at 405, 153 N.E. at 678-79.)
While it has been held, albeit in different circumstances, a circuit court order allowing a motion to “ ‘commence and prosecute’ ” a lawsuit as a poor person may relieve a claimant of the burden of exhibiting a receipt for payment of costs, “[i]f no such order is entered the clerk must observe the statute and decline to issue the writ [now summons], unless such receipt is exhibited.” (Visioni v. Industrial Comm’n (1942), 379 Ill. 608, 615, 42 N.E .2d 64, 67.) Since no order of the Commission waiving fees existed, the clerk of the circuit court was not authorized to issue summons in the absence of compliance with section 19(f)(1).
We now turn to consideration of the issue this court raised sua sponte as to the effect, if any, of the order waiving fees and costs in the circuit court entered by a trial judge on the same date claimant filed her application for leave to sue or defend as a poor person with the circuit clerk. While no cases are called to our attention which are directly on point, we find instructive the supreme court’s discussion in Visioni v.
Free access — add to your briefcase to read the full text and ask questions with AI
JUSTICE McCULLOUGH
delivered the opinion of the court:
We consider here the question of subject-matter jurisdiction of the circuit court. On June 12, 1986, the Industrial Commission (Commission) affirmed an arbitrator’s award in favor of claimant for temporary total disability. The Commission order also recited that the probable cost of the record to be filed as part of any review of the decision of the Commission was $35. Claimant decided to seek review.
On July 1, 1986, claimant presented a handwritten request to the Commission asking that payment of the fee for preparation of the record be waived together with a notice setting the motion for hearing on July 10, 1986. Before receiving a ruling on that motion, however, on July 3, 1986, claimant filed an application to sue or defend as a poor person with the circuit court of Cook County requesting review of the Commission’s decision.
On the same day, the application to sue and defend as a poor person was considered ex parte and granted by a judge of the circuit court of Cook County, as evidenced by a check mark in the box labeled “application granted” on the face of the application, followed by the signature of the trial judge and a file stamp bearing the trial judge’s name also dated July 3, 1986. The record also reveals that summons issued and a certificate of mailing was made on July 3, 1986, although there is no written request for issuance of summons contained in the record.
Claimant’s motion before the Commission was heard and denied in a written order entered on August 4, 1986. Upon payment of the $35 fee, the Commission issued a receipt for payment of the probable cost of the record on August 19, 1986, which was subsequently filed with the circuit court on August 22,1986.
Respondent moved to dismiss the circuit court proceeding for lack of subject-matter jurisdiction. The trial court granted the motion and claimant filed a timely notice of appeal.
On appeal the parties raise the issue of whether the circuit court lacked subject-matter jurisdiction because summons was issued prior to verification by the circuit court clerk that the probable cost of the record had been paid. On our own motion, this court raised the issue of the effect, if any, of the circuit court’s order allowing claimant’s application to sue or defend as a poor person either prior to or simultaneous with the issuance of summons.
The cases are legion which state that failure to strictly comply with the provisions of section 19(f)(1) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(f)(1)) deprives the circuit court of subject-matter jurisdiction. (Malone v. Industrial Comm’n (1986), 141 Ill. App. 3d 116, 489 N.E.2d 1167.) Section 19(f)(1) of the Act provides in relevant part:
“[N]o summons shall issue unless the party seeking to review the decision of the Commission shall exhibit to the clerk of the Circuit Court proof of payment by filing a receipt showing payment or an affidavit of the attorney setting forth that payment has been made of the sums so determined to the Secretary or Assistant Secretary of the Commission, except as otherwise provided by Section 20 of this Act.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(f)(1).)
Strict compliance with the Act has been relaxed only to the extent a receipt need not actually be exhibited as long as the circuit clerk has assured himself the probable cost of the record has actually been paid prior to the issuance of summons. Malone, 141 Ill. App. 3d 116, 489 N.E.2d 1167.
It is conceded by claimant the requirements of section 19(f)(1) were not met. Claimant argues, however, her request to waive the fee for issuance of summons which was pending before the Commission when review to the circuit court was sought is sufficient to obviate the need to strictly comply with section 19(f)(1), since the 20-day statutory period for filing for review of the Commission decision was running and, according to claimant, no commissioner was immediately available to consider her motion to waive the fee.
Section 20 of the Act provides in pertinent part:
“If the Commission shall, before or after any hearing, proceeding, or review to any court, be satisfied that the employee is a poor person, and unable to pay the costs and expenses provided for by this Act, the Commission shall permit such poor person to have all the rights and remedies provided by this Act, including the issuance and service of subpoenas; a transcript of testimony and the record of proceedings at hearings before an Arbitrator or the Commission; the right to have the record of proceedings certified to the circuit court; the right to the filing of a written request for summons; and the right to the issuance of summons, without the filing of a bond for costs and without the payment of any of the costs provided for by this Act.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.20.)
The question is whether a pending motion seeking relief from payment of costs filed with the Commission relieves a party from complying with section 19(f)(1) before a petition for review in the circuit court may be filed and summons issue. We hold that it does not.
In Moweaqua Coal Mining & Manufacturing Co. v. Industrial Comm’n (1926), 322 Ill. 403, 153 N.E. 678, the supreme court stated:
“The statute says plainly that no praecipe for a writ of certiorari may be filed and no writ shall issue until the parties seeking the writ shall exhibit to the circuit clerk a receipt showing payment of the amount of the probable cost of the record to be filed as a return to the writ of certiorari. The purpose of the statute is to coerce the payment of an amount sufficient to cover the cost of the record which the Industrial Commission must prepare. The legislature has seen fit to make the payment of this amount a condition precedent to the issuance of the writ. The language of the statute is plain and there is no room for construction. The clerk had no authority to issue the writ and it was properly quashed on motion.” (322 Ill. at 405, 153 N.E. at 678-79.)
While it has been held, albeit in different circumstances, a circuit court order allowing a motion to “ ‘commence and prosecute’ ” a lawsuit as a poor person may relieve a claimant of the burden of exhibiting a receipt for payment of costs, “[i]f no such order is entered the clerk must observe the statute and decline to issue the writ [now summons], unless such receipt is exhibited.” (Visioni v. Industrial Comm’n (1942), 379 Ill. 608, 615, 42 N.E .2d 64, 67.) Since no order of the Commission waiving fees existed, the clerk of the circuit court was not authorized to issue summons in the absence of compliance with section 19(f)(1).
We now turn to consideration of the issue this court raised sua sponte as to the effect, if any, of the order waiving fees and costs in the circuit court entered by a trial judge on the same date claimant filed her application for leave to sue or defend as a poor person with the circuit clerk. While no cases are called to our attention which are directly on point, we find instructive the supreme court’s discussion in Visioni v. Industrial Comm’n (1942), 379 Ill. 608, 42 N.E .2d 64. That case arose under the Workmen’s Occupational Diseases Act (Ill. Rev. Stat. 1941, ch. 48, par. 172.1 et seq.). The employee filed a motion in the circuit court for leave to sue as a poor person simultaneous to the filing of the praecipe for writ of certiorari. The Industrial Commission had previously denied a request for leave to sue as a poor person because the Workmen’s Occupational Diseases Act in effect at the time did not contain a provision similar to section 20 of the present Workers’ Compensation Act (then section 19a of the Act (Ill. Rev. Stat. 1941, ch. 48, par. 156a)), which would have permitted the Commission to waive fees had the case arisen under the compensation law.
The trial court, on ex parte hearing, granted the request to sue as a poor person and directed the Commission to certify a transcript of its proceedings “without exhibiting the receipt showing payment” of the cost of preparing the record. The employer moved to quash the writ on the basis the court did not have jurisdiction which was denied. The supreme court affirmed, holding the trial court had authority to waive costs under the costs statute (Ill. Rev. Stat. 1941, ch. 33, par. 5, now Ill. Rev. Stat. 1985, ch. 110, par. 5 — 105). The supreme court concluded the costs statute was not limited to the costs of the court itself but might extend to those of the Commission, at least so long as the Commission did not refuse to respond to the writ. The court refused to answer the question of the right of a circuit court to require the Commission to make a return without first being paid its charges on the grounds such question was not before it. Visioni, 379 Ill. at 614, 42 N.E.2d at 67.
The supreme court has clearly indicated a circuit court does not lack subject-matter jurisdiction where the clerk of the circuit court accepts for filing Industrial Commission materials without payment of the circuit clerk’s charges in advance. In Elles v. Industrial Comm’n (1940), 375 Ill. 107, 30 N.E.2d 615, the supreme court held such circumstances constituted no grounds for quashing a writ of certiorari since payment of the circuit clerk’s costs was not jurisdictional and the costs statute which required payment of fees to the clerk in advance was merely directory. On the other hand, the supreme court has consistently held compliance with section 19(f)(1) is a condition precedent for issuance of the writ of certiorari which, if not met, does not confer subject-matter jurisdiction on the court. Arrington v. Industrial Comm’n (1983), 96 Ill. 2d 505, 508-09, 451 N.E.2d 866, 867.
Under the. facts of this case we conclude the trial court’s ex parte order did not extend to waiver of the fee associated with preparation of the Commission record. In the first instance, under Visioni, the compensation act provides the express authority by which the Commission is empowered to consider waiver of fees. The parties were proceeding before the Commission pursuant to that authority even after the trial court’s order was entered, conduct inconsistent with any claim the trial court’s order addressed this question. Moreover, sanctioning such a practice would undermine the strong legislative policy requiring compliance with section 19(f)(1) by allowing a party on an ex parte, perfunctory hearing, without notice to the opposing party, to avoid what has been determined to be a jurisdictional step in the review of compensation cases.
Under the circumstances present in this case, we conclude the circuit court properly dismissed the petition for review for lack of jurisdiction. Accordingly, the judgment of the circuit court of Cook County is affirmed.
Affirmed.
McNAMARA, WOODWARD, and LEWIS, JJ., concur.