The opinion of the court was delivered by: Robson, District Judge.
These 18 actions filed by several electric public utilities
seek treble damages under federal antitrust laws. The
separately grouped defendants are charged with conspiratorial
price fixing resulting in the establishment of higher
prices in the sale of electrical equipment to the plaintiffs.
The cases involved in the instant motion comprise two series
filed along nine product lines covering power transformers,
power switchgear assemblies, low voltage power circuit
breakers, distribution transformers, meters, condensers,
circuit breakers, turbine-generator units, and power switching
equipment. Four of the plaintiff utilities operate in Illinois.
They are Commonwealth Edison Company, Central Illinois Electric
& Gas Co., Central Illinois Light Co., and Iowa-Illinois Gas &
Electric Co. (hereinafter referred to as plaintiffs).
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.
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
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
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
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 ...