{ "id": 2598060, "name": "Gerald R. Adler, Plaintiff-Appellant, v. Northern Illinois Gas Company, Defendant-Appellee", "name_abbreviation": "Adler v. Northern Illinois Gas Co.", "decision_date": "1965-03-15", "docket_number": "Gen. No. 49,901", "first_page": "210", "last_page": "220", "citations": [ { "type": "official", "cite": "57 Ill. App. 2d 210" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "105 NE2d 727", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "412 Ill 151", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2663600 ], "year": 1952, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/ill/412/0151-01" ] }, { "cite": "170 NE2d 147", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "20 Ill2d 280", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2736642 ], "year": 1960, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0280-01" ] }, { "cite": "119 NE 346", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1918, "opinion_index": 0 }, { "cite": "283 Ill 301", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2415168 ], "year": 1918, "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/ill/283/0301-01" ] }, { "cite": "79 NE2d 762", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "334 Ill App 347", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2428781 ], "year": 1948, "pin_cites": [ { "page": "357" } ], "opinion_index": 0, "case_paths": [ "/ill-app/334/0347-01" ] }, { "cite": "81 NE2d 149", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "400 Ill 380", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5305896 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/ill/400/0380-01" ] }, { "cite": "179 NE2d 444", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "33 Ill App2d 374", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5233862 ], "year": 1961, "pin_cites": [ { "page": "377-378" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/33/0374-01" ] }, { "cite": "18 NE2d 735", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "298 Ill App 192", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5613719 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/ill-app/298/0192-01" ] }, { "cite": "111 NE2d 363", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "349 Ill App 490", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5103482 ], "year": 1953, "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/ill-app/349/0490-01" ] }, { "cite": "192 NE2d 599", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "42 Ill App2d 451", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5248621 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-app-2d/42/0451-01" ] }, { "cite": "81 SE2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "710" } ], "opinion_index": 0 }, { "cite": "111 NE2d 345", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "414 Ill 475", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5314328 ], "year": 1953, "pin_cites": [ { "page": "480" } ], "opinion_index": 0, "case_paths": [ "/ill/414/0475-01" ] }, { "cite": "360 US 378", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8899 ], "year": 1959, "pin_cites": [ { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/us/360/0378-01" ] }, { "cite": "332 US 507", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 365124 ], "year": 1947, "pin_cites": [ { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/us/332/0507-01" ] }, { "cite": "317 US 456", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 303844 ], "year": 1943, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/us/317/0456-01" ] } ], "analysis": { "cardinality": 761, "char_count": 14874, "ocr_confidence": 0.523, "pagerank": { "raw": 2.0755799633354032e-07, "percentile": 0.7583561821557936 }, "sha256": "0bf8fcb935c3eff64900db44eeedb8e4d4b4b8f2b6e58ddc014ce52844492a84", "simhash": "1:f88159cc06db4d92", "word_count": 2355 }, "last_updated": "2023-07-14T21:56:24.929812+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BURMAN, P. J. and KLUCZYNSKI, J., concur." ], "parties": [ "Gerald R. Adler, Plaintiff-Appellant, v. Northern Illinois Gas Company, Defendant-Appellee." ], "opinions": [ { "text": "MR. JUSTICE MURPHY\ndelivered the opinion of the court.\nThis is a-class action, in which plaintiff, a customer of defendant, Northern Hlinois Gras Company, brought an action on behalf of all customers of defendant in the Circuit Court of Cook County, seeking (1) a declaratory judgment determining the rights of defendant\u2019s customers under the Natural Gas Act (Title 15 USC \u00a7 717ff) and the public utility laws of Illinois; and (2) an accounting for a large sum of money by which, plaintiff alleges, defendant fraudulently enriched itself through the sale of natural gas to its customers. The trial court dismissed the action for want of jurisdiction over the subject matter of the action and denied leave to amend the complaint. Plaintiff appeals.\nPlaintiff\u2019s complaint, in substance, contains allegations grounded on plaintiff\u2019s basic theory of the instant action, which is:\n(1) Congress, by the enactment in 1938 of the Natural Gas Act, providing for the regulation of natural gas, intended the ultimate gas consumers of the nation to be the primary beneficiaries of \u201ca dual system of regulation of the natural gas industry which would protect the consumers against exploitation and windfall profits arising out of the sale of such gas to ultimate users.\u201d\n(2) Defendant\u2019s business is devoted almost entirely to the purchase and resale of natural gas to ultimate consumers in Illinois.\n(3) Defendant\u2019s sworn statements disclose returns from 9% to over 10%, whereas \u201cthe FPC [Federal Power Commission], in carrying out the program of Congress under the Natural Gas Act has repeatedly held interstate natural gas companies shall not make large windfall profits or exploit the consumers, by limiting their return to 6% or 6%%. Since Northern resells such natural gas, it has no greater right to windfall profits than have pipeline companies.\u201d Defendant\u2019s profits are \u201ctantamount to a fraud upon its customers.\u201d\n(4) The Natural Gas Act is in pari materia with the Illinois utility laws. Northern\u2019s duties to its customers and their rights depend upon the provisions and purposes of both statutes. The mandate to carry out the common purposes of federal and state laws does not rest only with administrative agencies, but it is also imposed upon the courts. Equity courts in Illinois should entertain plaintiff\u2019s complaint because \u201cthey are the only agency which can prohibit Northern from retaining its windfall profits.\u201d\n(5) Plaintiff properly filed no complaint with the Illinois Commerce Commission because \u201c50 years of history of Illinois utility regulation apparently discloses no precedent for lower rates obtained by individual consumers against large utilities. Such remedy has become largely a fiction or illusion.\u201d\nDefendant\u2019s motion to dismiss, filed pursuant to section 48 of the Illinois Civil Practice Act, alleges the court does not have jurisdiction of the subject matter of the action because it \u201cis one over which the Illinois Commerce Commission has exclusive jurisdiction by reason of \u2018An Act Concerning Public Utilities\u2019 (Ill Rev Stats 1961, c 111%, \u00a7 1 et seq.), and plaintiff has not utilized or exhausted his remedies before the Illinois Commerce Commission. Said jurisdictional defect cannot be removed by transfer of the case to any other court.\u201d\nAn affidavit in support of defendant\u2019s motion to dismiss alleges that on January 16, 1954, after notice and hearing in an adversary proceeding, the Illinois Commerce Commission entered an order \u201capproving the rates to be charged by Northern Illinois from and after February 1, 1954,\u201d and also approved a \u201cpurchased gas cost adjustment clause\u201d under which the rates of defendant \u201care automatically increased or lowered as prices paid by Northern Illinois to interstate pipeline suppliers for natural gas are raised or lowered.\u201d\nThe supporting affidavit also includes a certified copy of a \u201cDeclaration of Exemption,\u201d entered on July 25,1956, by tbe Federal Power Commission, wbicb administers tbe Natural Gas Act. Tbis \u201cDeclaration\u201d shows that \u201cupon tbe basis of tbe application filed, tbe exhibits appended thereto, and tbe files of tbe Commission, it appears that\u201d defendant purchases interstate natural gas at points within tbe State of Illinois, and all natural gas received by defendant is ultimately consumed within tbe State of Illinois, and that \u201ctbe Illinois Commerce Commission has certified to tbe Federal Power Commission that it has and is exercising regulatory jurisdiction over tbe rates, service and facilities of Applicant.\u201d\nBy reason of tbe foregoing, tbe Federal Power Commission declared, \u201cNorthern Illinois Gas Company is exempt from tbe provisions of tbe Natural Gas Act, and tbe orders, rules and regulation of tbis Commission issued pursuant thereto.\u201d\nTbe order of tbe trial court recites that tbe court considered tbe complaint, tbe motion to dismiss and affidavit in support, plaintiff\u2019s counteraffidavit, interrogatories and answers, briefs from both parties, beard an oral argument, and, being fully advised in tbe premises, ordered \u201cthat tbis action be . . . dismissed for want of jurisdiction of tbe Court over tbe subject matter of tbe action, and that no declaratory judgment, as prayed for in tbe Complaint, be granted because of tbe want of jurisdiction of tbe Court over tbe subject matter of tbe action.\u201d Tbe order also denied leave to amend tbe complaint, \u201cfinding that there is no basis upon wbicb an amendment would result in tbis Court having jurisdiction over tbe subject matter of tbis action.\u201d\nWe agree with plaintiff that \u201cCongress contemplated a harmonious, dual system of regulation of tbe natural gas industry \u2014 federal and state regulatory bodies operating side by side, each active in its own sphere\u201d (Public Utilities Commission v. United Fuel Gas Co., 317 US 456, 467 (1943)), and that \u201c \u2018the primary aim of this legislation was to protect consumers against exploitation at the hands of natural gas companies.\u2019 The scheme was one of cooperative action between federal and state agencies.\u201d (Panhandle Pipeline Co. v. Public Service Commission, 332 US 507, 520 (1947).) Also, that \u201cthe Act was so framed as to afford consumers a complete, permanent and effective bond of protection from excessive rates and charges.\u201d Atlantic Refining Co., et al. v. Public Service Commission of N. Y., et al., 360 US 378, 388 (1959).\nWe also agree that \u201cthe principle that the federal and state statutes relating to the regulation of natural gas are to be considered together for the purpose of providing effective protection of the consumer is supported by state court rulings. There is ample authority in state court decisions that federal and state statutes dealing with the same general subject, including common carriers, are to be construed together and are therefore in pari materia.\u201d Also, \u201cwhere state and federal statutes deal with the same subject matter, weight should be given by a Court to interpretation of the federal laws and the two statutes constitute a common program to carry out a public purpose requiring co-operation by both.\u201d (Commonwealth Life & Accident Ins. Co. v. Board of Review of Dept. of Labor, 414 Ill 475, 480, 111 NE2d 345 (1953); Chesapeake & O. R. Co. v. Public Service Commission, 81 SE2d 700, 710 (1953).) A discussion of the foregoing statements is not required, because we do not believe they are in issue here.\nWe agree with plaintiff that \u201cthe common public purpose of state and national legislative action cannot be achieved without the cooperation of both\u201d state and national authorities. We think that the \u201cDeclaration of Exemption,\u201d issued by the Federal Power Commission on July 25, 1956, was a manifestation of this cooperation, and a recognition of the purpose of section 717(c) of the Natural Gas Act:\n\u201cThe matters exempted from the provisions of this chapter by this subsection are declared to be matters primarily of local concern and subject to regulation by the several States.\u201d\nThe \u201cDeclaration\u201d specifically mentioned that \u201cthe Illinois Commerce Commission has certified to the Federal Power Commission that it has and is exercising regulatory jurisdiction over the rates, service and facilities of Applicant.\u201d Section 717 (c) of the Natural Gas Act provides that such a certification \u201cshall constitute conclusive evidence of such regulatory power or jurisdiction.\u201d\nSection 72 of the Illinois Public Utilities Act (Ill Rev Stats 1963, c 111%, \u00b6 76) provides:\n\u201cWhen complaint has been made to the [Illinois Commerce] 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.\u201d\nThis statutory remedy has consistently been held by Illinois courts to be the exclusive remedy to recover reparations for unreasonable charges by public utilities, superseding all common law actions for reparation (Alton Brick Co. v. Alton Water Co., 42 Ill App2d 451, 192 NE2d 599 (1963); Colton v. Commonwealth Edison Co., 349 Ill App 490, 498, 111 NE2d 363 (1953)), and a pending decision by the Illinois Cornmerce Commission has been held sufficient to preclude the granting of equitable relief. (American Generator & Armature Co., Inc., v. Commonwealth Edison Co., 298 Ill App 192, 18 NE2d 735 (1939).) The Illinois Commerce Commission has exclusive jurisdiction over complaints of excessive rates charged by public utilities, and the courts have jurisdiction over these matters only upon administrative review of the decisions of the Commission, that is, only after utilization and exhaustion of the remedies available before the Commission.\nBecause the plaintiff here has chosen to by-pass the Commission, thus ignoring the procedure prescribed by statute for the prosecution of such claims, the trial court was without jurisdiction to grant him relief. Until plaintiff has utilized or exhausted his remedies before that Commission, the Circuit Court is \u201cwithout jurisdiction of the subject matter,\u201d save on administrative review. Ill Rev Stats 1963, c 111%, \u00b672; Peterson v. Domestic Utility Services Co., 33 Ill App2d 374, 377-378, 179 NE2d 444 (1961).\nThe plaintiff contends, however, that defendant\u2019s profits for the 15-month period involved were so great as to be tantamount to fraud upon its customers and, therefore, fraud having been alleged, a court of equity has jurisdiction regardless of the usual necessity for the exhaustion of administrative remedies.\n\"We do not believe that plaintiff\u2019s complaint alleged sufficient facts to support its general allegations of fraud. As said in Owens v. Green, 400 Ill 380, 81 NE2d 149 (1948):\n\u201cIt is not enough to merely use the terms \u2018fraud\u2019 or \u2018fraudulently\u2019 for the adequate reason that the unexplained use of these terms alleges nothing. When used, as here, they are generally deemed expletives \u2014 words of abuse. . . . An allegation of conspiracy, collusion and fraud must show the facts upon which the allegation is based, and a general charge that a party acted fraudulently or was guilty of fraud is a statement of a conclusion and is not good pleading. These general words, unsupported by facts, are, at best, mere vituperation.\u201d\nThe defendant\u2019s motion to dismiss only admitted the facts which were well-pleaded in the complaint, not the plaintiff\u2019s conclusions or inferences of fraud. Skidmore v. Johnson, 334 Ill App 347, 357, 79 NE2d 762 (1948).\nWe are not persuaded that because defendant\u2019s earnings for the 15-month period here involved were in excess of 6% or 6%% on defendant\u2019s original cost of property, less depreciation reserve, these earnings are \u201ctantamount to a fraud upon its customers.\u201d The plaintiff\u2019s allegations that these \u201cexcessive and extortionate\u201d rates were \u201cknown\u201d to be such by defendant, and that defendant \u201cconspired\u201d to deprive plaintiff and other customers of a hearing to determine the reasonableness of its rates by \u201cinducing\u201d the Illinois Commerce Commission not to hold such hearings, do not and cannot, in the absence of specific supporting facts, sustain plaintiff\u2019s theory that defendant\u2019s earnings and profits are \u201ctantamount to a fraud upon its customers.\u201d\nPlaintiff further contends that the trial court \u201cacted arbitrarily in refusing to permit even a single amendment to the complaint,\u201d contrary \u201cto the letter and spirit of Section 46 of the Illinois Practice Act.\u201d\nIn allowing amendments to pleadings, a trial court has \u201ca judicial discretion, which is subject to review, and one which should be exercised liberally in favor of the allowance of such amendments whenever essential to the proper presentation of a party\u2019s cause of action or defense.\u201d (Delfosse v. Kendall, 283 Ill 301, 305, 119 NE 346 (1918).) The trial judge has broad discretion in permitting or refusing amendments, and only a manifest abuse of such discretion will be reviewed. (Lowrey v. Malkowski, 20 Ill2d 280, 285, 170 NE2d 147 (1960).) In the instant case, we agree with the trial judge that the record does not demonstrate any basis upon which an amendment would result in the trial court having jurisdiction over the subject matter of this action. We find no error here \u2014 -\u201cjustice is not served by fruitless expenditure of time and effort by our courts, their officers and litigants.\u201d Deasey v. Chicago, 412 Ill 151, 157, 105 NE2d 727 (1952).\nIn conclusion, we find that the trial court was correct in determining that it was not presented with a proper cause of action for a declaratory judgment \u201cdetermining the legal rights of the plaintiff\u201d and of the customers of defendant, \u201carising out of the Natural Gas Act . . . and its relationship to the . . . [Public Utilities Act] and other relevant laws of . . . Hlinois.\u201d Public utility rate-making matters and questions of profits are to be resolved by resort, in the first instance, to the Illinois Commerce Commission, following the administrative proc\u00e9dures prescribed by the legislature. Until these prescribed statutory procedures are exhausted, such matters are not a subject for court action. Ill Rev Stats 1963, c 111%, \u00a7 72.\nFor the reasons given, the order of the Circuit Court dismissing plaintiff\u2019s action for want of jurisdiction of the subject matter is affirmed.\nAffirmed.\nBURMAN, P. J. and KLUCZYNSKI, J., concur.", "type": "majority", "author": "MR. JUSTICE MURPHY" } ], "attorneys": [ "Harry R. Booth, of Chicago (Bernard Allen Fried, of counsel), for appellant.", "Isham, Lincoln & Beale, of Chicago (Justin A. Stanley, Robert A. Heknan and David L. Lange, of counsel), for appellee." ], "corrections": "", "head_matter": "Gerald R. Adler, Plaintiff-Appellant, v. Northern Illinois Gas Company, Defendant-Appellee.\nGen. No. 49,901.\nFirst District, First Division.\nMarch 15, 1965.\nRehearing denied April 26, 1965.\nHarry R. Booth, of Chicago (Bernard Allen Fried, of counsel), for appellant.\nIsham, Lincoln & Beale, of Chicago (Justin A. Stanley, Robert A. Heknan and David L. Lange, of counsel), for appellee." }, "file_name": "0210-01", "first_page_order": 222, "last_page_order": 232 }