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COMMONWEALTH EDISON CO. v. ALLIS-CHALMERS MFG. CO.

May 17, 1962

COMMONWEALTH EDISON COMPANY ET AL., PLAINTIFFS,
v.
ALLIS-CHALMERS MANUFACTURING COMPANY ET AL., DEFENDANTS, AND RELATED CASES. CENTRAL ILLINOIS LIGHT COMPANY ET AL., PLAINTIFFS, V. ALLIS-CHALMERS MANUFACTURING COMPANY ET AL., DEFENDANTS, AND RELATED CASES.



The opinion of the court was delivered by: Robson, District Judge.

Intervention is sought by the Attorney General of Illinois (1) on behalf of the citizens of the State, who were consumers of the four plaintiffs, to secure refunds out of any recoveries realized herein, and (2) on behalf of the State of Illinois, its agencies and public institutions, to present claims for damages allegedly involving questions of law and fact in common with those of the main actions.

INTERVENTION AS OF RIGHT

The State of Illinois contends that the recovery of damages by these plaintiffs will create a fund for distribution subject to the disposition of this Court and in which plaintiffs' consumers have a direct interest. It further contends that by reason of this fund it is entitled to intervene in behalf of the consumers as a matter of right because (1) the representation of the consumer interest by existing parties may be inadequate, and (2) the consumers may be bound by a judgment or order in this action.

The applicable part of Rule 24, Federal Rules of Civil Procedure, 28 U.S.C.A. states:

    "(a) Intervention of right. Upon timely application any one
  shall be permitted to intervene in an action: * * * (2) when
  the representation of the applicant's interest by existing
  parties is or may be inadequate and the applicant is or may
  be bound by a judgment in the action; or (3) when the
  applicant is so situated as to be adversely affected by a
  distribution or other disposition of property which is in the
  custody or subject to the control or disposition of the court
  or an officer thereof."

The State's theory as to the existence of the "fund" is that the rates and charges for services paid by the consumers were excessive because said rates were based, in part, upon plaintiffs' capital expenditures for electrical equipment for which excessive prices had been conspiratorially fixed. It concludes that that part of a recovery herein which is in the excess over a reasonable rate, constitutes a "fund" in which plaintiffs' consumers have an interest.

The State does not earnestly argue that the consumers will be bound by any judgment or order herein and readily admits that "plaintiffs' consumer-customers are not parties to this suit and, therefore, under the principles of res judicata are not bound. * * *" Its principal contention is predicated on the existence of a fund which it alleges is subject to the disposition of this Court. It is clear that the existence and amount of this "fund" must depend on a determination of what was a reasonable and legal rate during the period of the alleged conspiracy.

Since plaintiffs are public utilities, they are subject to the jurisdiction of the Illinois Commerce Commission under the provisions of the Public Utilities Act, S.H.A. Ch. 111 2/3. The exclusive power for fixing reasonable rates lies in that body subject to the provided statutory review by the Illinois courts (Peoples Gas Light & Coke Co. v. Slattery, 373 Ill. 31, 25 N.E.2d 482 (1939); Natural Gas Pipeline Co. of America v. Federal Power Comm., 141 F.2d 27 (7th Cir. 1944); Tilney v. City of Chicago, 134 F.2d 682 (7th Cir. 1943)). If rates are alleged to be excessive or improper in any respect, complaint must be made to the State commission. There is a specific Illinois statute providing for recovery of "excessive" rates. The Public Utilities Act, § 72, S.H.A. Ch. 111 2/3, § 76, provides in part:

    "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."

The law is well settled in Illinois that the statutory remedy for reparations is the exclusive remedy of customers of a public utility who allege that the utility's rates are excessive (Mandel Bros., Inc. v. Chicago Tunnel Terminal Co., 2 Ill.2d 205, 117 N.E.2d 774 (1954); Terminal R.R. Ass'n of St. Louis v. Public Utilities Comm., 304 Ill. 312, 136 N.E. 797 (1922); Burke v. Illinois Bell Tel. Co., 348 Ill. App. 529, 109 N.E.2d 358 (1952); American Generator & Armature Co. v. Commonwealth Edison Co., 298 Ill. App. 192, 18 N.E.2d 735 (1939); Medusa Portland Cement Co. v. Illinois Cent. R.R., 287 Ill. App.? 549, 5 N.E.2d 782 (1936); Natural Gas Pipeline Co. of America v. Federal Power Comm., supra; Tilney v. City of Chicago, supra).

In Medusa Portland Cement Co. v. Illinois Cent. R.R., supra, the Court stated the rule thus (287 Ill.App. at p. 561, 5 N.E.2d at p. 787):

    "Since the enactment of the Public Utilities Act, section 72
  thereof has provided the only method or remedy available in
  this state for determining whether rates charged by public
  utilities are fair and reasonable or unfair, unreasonable,
  and discriminatory. This section of the act also authorizes
  the commission to award reparation to claimants if ...

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