Appeal by plaintiffs from the Circuit Court of Cook county;
the Hon. BENJAMIN P. EPSTEIN, Judge, presiding. Heard in the
third division of this court for the first district. Order
appealed from affirmed. Opinion filed December 10, 1952.
Rehearing denied December 31, 1952. Released for publication
December 31, 1952.
MR. PRESIDING JUSTICE LEWE DELIVERED THE OPINION OF THE COURT.
Rehearing denied December 31, 1952
Plaintiffs, telephone subscribers of defendant, filed a representative suit alleging in substance that defendant, a public utility, is subject to the provisions of the Illinois Commerce Commission Act; that on January 3, 1923, the Commerce Commission, in accordance with the powers vested in it, issued its General Order 107, which provides in Rule X that telephone directories of exchanges serving more than one-thousand subscribers shall be revised, printed and distributed to subscribers semiannually and that telephone directories of all other exchanges shall be revised, printed and distributed to subscribers at least once each year; that in consideration of its compliance with the provisions of Rule X, the Commerce Commission authorized defendant to charge its subscribers certain rates; that the defendant willfully failed and neglected to revise, print and distribute semiannually telephone directories to its subscribers of exchanges in the State of Illinois serving more than one-thousand subscribers, and that it also willfully neglected and failed to revise, print and distribute its directories at least once a year to its subscribers of exchanges serving less than one-thousand subscribers, contrary to the provisions of Rule X of General Order 107.
The complaint further alleges that as a result of the willful neglect of the defendant to revise, print and distribute its directories pursuant to Rule X of General Order 107 of the Commerce Commission, "millions of hours of time, inconvenience, and aggravation" have been suffered by the subscribers of the defendant in the City of Chicago; that in the suburban territory about the City of Chicago and in other communities throughout Illinois the defendant also failed to comply with Rule X; that the approximate cost of revising, printing and distributing each proposed semiannual issue in the City of Chicago is approximately two dollars each; that the cost of revising, printing and distributing directories in the suburban area of Chicago is one dollar each; that for the other subscribers served by the defendant the cost of revising, printing and distributing is approximately fifty cents each; and that as a result of the willful refusal of the defendant to furnish to its subscribers the directories provided for by Rule X of General Order 107 of the Commission, plaintiffs and all other subscribers "have been deprived of services for the safety, health, comfort and convenience of themselves and all other subscribers."
In the concluding paragraph of the complaint the plaintiffs on behalf of themselves and all other subscribers of the defendant "request" a refund from the defendant to each subscriber in the City of Chicago of at least two dollars an issue of the telephone directory of which the defendant has wrongfully deprived its subscribers, and at least one dollar an issue of the suburban directory; and for general relief.
Defendant filed a motion to strike the complaint. This motion was denied except that all allegations relating to damages alleged to have been sustained by plaintiffs prior to March 10, 1938 were stricken. After issues were joined the cause was referred to a master in chancery. While the cause was pending before the master, defendant filed a motion for summary judgment and plaintiffs filed a motion to dismiss defendant's motion for summary judgment. Both of these motions were also referred to the same master in chancery "for hearing and disposition." In his report the master recommended that plaintiffs' motion to dismiss defendant's motion for summary judgment should be sustained. Objections were filed by defendant and the master issued a supplemental report reaffirming the findings of his original report but was of the opinion that the circuit court lacked jurisdiction to hear the cause. In conformity with the master's findings and recommendations a decree was entered dismissing the complaint for want of jurisdiction of the subject matter.
The trial court found that the claim as alleged in the complaint is "in effect and substance" for a refund of that part of the rates paid by defendant's subscribers for directories not received, and hence is a claim for reparations within the meaning of section 72 of the Public Utilities Act [Ill. Rev. Stats. 1951, ch. 111 2/3, par. 76; Jones Ill. Stats. Ann. 112.098]; and, further, if plaintiffs' claim be considered one for consequential damages under section 73 [Ill. Rev. Stats. 1951, ch. 111 2/3, par. 77; Jones Ill. Stats. Ann. 112.099] of the Public Utilities Act it cannot be maintained as a representative action.
Plaintiffs' principal contention is that the court erred in dismissing the complaint for want of jurisdiction of the subject matter.
The pertinent provisions of section 72 read:
"When complaint has been made to the Commission concerning any rate or other charge of any public utility and the Commission has found, after a hearing, that the public utility has charged an excessive or unjustly discriminatory amount for its product, commodity or service, the Commission may order that the public utility make due reparation to the complainant therefor, with interest at the legal rate from the date of payment of such excessive or unjustly discriminatory amount."
In construing section 72 in Terminal Railroad Ass'n v. Public Utilities Commission, 304 Ill. 312, our Supreme Court said, at page 317:
"The evident intent and purpose of the legislature in providing a method by which reparation may be recovered and in requiring that an application therefor shall be first made to the commission, precludes an action at law for such reparation until the commission has heard a claim therefor. This is the view taken by the Supreme Court of the United States with reference to similar provisions in the Interstate Commerce act. (Texas and Pacific Railway Co. v. Abilene Cotton Oil Co., 204 U.S. 426.) The similarity between the Interstate Commerce act and our Public Utilities act makes the decisions of the Supreme Court of the United States persuasive as to the correct rule to be adopted in this State."
To the same effect see Medusa Portland Cement Co. v. Illinois Cent. R. Co., 287 Ill. App. 549.
The governing rule has been stated by JUSTICE BRANDEIS in Great Northern Ry. Co. v. Merchants Elev. ...