delivered the opinion of the court:
Thе circuit court of Sangamon county reversed an order for reparation entered by the Public Utilities Commission in favor of the appellant and against the appellee, the Terminal Railroad Association of St. Louis.
On June 30, 1917, the Terminal Railroad Association of St. Louis filed its petitiоn with the Illinois Public Utilities Commission for the purpose of having certain local and joint freight rates advanced. As to the transportation of stone from Falling Springs to other points in the East St. Louis switching district, the only change sought by the petitioner was a change in the minimum weight per car. Thereaftеr the appellant stone company, located at Falling Springs, in this switching district, filed an intervening petition, claiming reparation on account of excessive and unjustly discriminatory charges upon shipments of stone from its quarries at Falling Springs to points within the East St. Louis switching district for the periоd between September, 1915, and September, 1917. The appellee moved to strike the intervening petition of the appellant from the files on the ground that the subject of intervention was not germane to the subject matter averred in its petition for an advance in tariff rates. This motion was overruled by the commission. Thereupon the appellee withdrew its petition for an increase in rates and no decision was entered thereon by the commission. That body, however, retained jurisdiction of the intervening petition of the appellant. After a hearing on said рetition an order was entered by the commission finding petitioner entitled to reparation in the sum of $6809.02, with interest at the legal rate from the date of payment of such charges, on the ground of discrimination against it. The rate charged appellant had been in effect since July 1, 1913. The commission found that such rate, as compared with rates to other points within said switching district for similar service, was unjust and discriminatory. From this order the appellee appealed to the circuit court of Sangamon county, and in that court contended that the commission was without jurisdictiоn to entertain the intervening petition and that its order is erroneous under the evidence heard in the case. The circuit court held that the charge that the rate was unreasonable because unjustly discriminatory was conclusively settled in Public Utilities Com. v. Terminal Railroad Ass’n,
It is contended by appellant that the commission properly entertained its intervening pеtition for reparation, and that the withdrawal of the petition for advance in tariffs did not deprive the commission of jurisdiction to hear appellant’s petition. With this we are inclined to agree. The J hearing before the commission was not under the prescribed rules of pleading, аnd appellee having withdrawn its petition for increase of rates, no reason is perceived for saying that the commission was not authorized to proceed to hear the petition for reparation. The commission could, and doubtless did, treat it as an original petition.
Aрpellant urges that it is necessary to have a hearing before the commission and a finding in favor of the petitioner for reparation as a condition precedent to an action - at law for the purpose of collecting the reparation; that by the terms of the stаtute in question the only effect of the order of the commission concerning reparation was to give to appellant the right to sue for such, and in such suit the order is prima facie evidence of the facts therein stated; that the order is evidentiary in character and is not a finаl and appealable order within the terms of the Public Utilities act, and therefore no appeal lies therefrom. Appellee contends that the Public Utilities Commission had no authority to pass upon the question of reparation, for the reason that these same parties litigated the question of reparation for charges paid between 1913 and 1915? and this court in Public Utilities Com. v. Terminal Railroad Ass’n, supra, in affirming the dismissal of the petition by the commission, foreclosed the question against the appellant, and the commission had no authority to, in effect, re-open the same through the means of a subsequent claim filed. This contention is without merit. In the case referred to, the commission was passing upon alleged unreasonable charges for the period between 1913 and 1915, while the present case is based upon charges between the yеars 1915 and 1917. Furthermore, it was specifically held both by the commission and by this court that there was no evidence tending to show that the difference in rate charged against Falling Springs and other places within the switching district was unreasonable and discriminatory, by reason of the character оf services rendered in such district. In the present case there was evidence before the commission showing the character of service necessary in the different parts of the switching district. The cases are not identical, and the doctrine of res judicata would not apрly for that reason even though it were otherwise applicable. Nor does the fact that the rate charged is that recognized by section 32 of the Public Utilities act prevent, as is thought, jurisdiction in the commission to hear and determine complaints of unreasonableness and unjust discrimination. Sections 32, 38 and 72 of the act provide for such jurisdiction, and this .power has been recognized by this court. Public Utilities Com. v. Chicago and West Towns Railway Co.
The question to be determined at the outset in this case is whether or not the order of the Public Utilities Commission is an appealable оrder. Section 68 of the Public Utilities' act provides: “Within thirty days after the service of any order or decision of the commission made after a final hearing, * * * any person or corporation affected by such rule, regulation, order or decision may appeal to the circuit сourt of Sangamon county, for the purpose of having the reasonableness or lawfulness of the rule, regulation, order or decision inquired into and determined.” The question arises, is the order of the commission in this case finding that reparation should be awarded, an “order or decision оf the commission made after a final hearing?” In other words, is this order a final order? It cannot be gainsaid that if the order of the commission be that reparation be not awarded, such order is conclusive of petitioner’s right to recover reparation. Section 72 of the Public Utilities аct, by which the commission is authorized to award reparation, provides that if the public utility does not comply with the order awarding reparation, the person for whose benefit such order is made may file in a court of competent jurisdiction a suit for the collection of samе, and “on the trial of such suit the order of the commission shall be prima facie evidence of the facts therein stated.”
Appellant contends that the order awarding reparation in this case was not reviewable, for the reason that the order in a suit to collect repаration is but prima facie evidence of the facts therein stated; that it settles nothing and is therefore not a final order and not appealable; that section 72 provides for a reasonable attorney’s fee to the petitioner “if the petitioner shall finally prevail” in thе lawsuit for reparation. Appellee, on the other hand, urges that the order is an appealable order for the reason that it is an order of the commission; that this court has recognized that such order is an appealable order, in Public Utilities Com. v. Terminal Railroad Ass’n, suprа, and Public Utilities Com. v. Chicago, Milwaukee and St. Paul Railway Co.
Section 72 of the Public Utilities act provides that suits to recover awards “shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the order of the commission shall be prima facie evidence of the facts therein stated.” Section 68 of the act provides with reference to appeals from the orders of the commis-l sion: “No new or additional evidence may be introduced in any proceeding upon appeal from a rule, regulation, order or decision of the commission, issued or confirmed after a hearing, but the appeal shall be heard on the record of the commission as certified to by it. The findings and conclusions of the commission on questions of fact shall be held prima facie to be true and as found by the commission; and a rule, regulation, order or decision of the commission shall not be set aside unless it clearly appears that the finding оf the commission was against the manifest weight of the evidence presented to or before the commission.” It is. evident from the various sections of the act that in a suit to enforce an award a wider scope is permitted in receivr ing evidence than in reviewing of orders of the сommission on appeal. In the latter no evidence is receivable except that heard before the commission, while in a suit to recover an award other evidence may be heard. That iUwas not the intention of the legislature to make an order for an award an appealable order will be seen on contemplation of the result of such appeal. Assume in this case that the circuit court had confirmed the award on appeal and on further appeal this court also confirmed it. In so doing this court would pass upon the merits of the case and determine that the evidence before the commission showed that the shipper was entitled to reparation and that reparation should be awarded, and yet on a subsequent suit to collect such reparation the decisions of the circuit court and this сourt would be of little or no probative force, for the reason that the only thing decided was that the order of the commission be permitted to stand as prima facie evidence in such suit. Though found by this court entitled to the award, the shipper must nevertheless prove his case, and thе carrier is free to open the entire record and procure, if it can, a judgment of the court trying the suit for the award. It could not have been the intention of the legislature that courts should do so useless and expensive a thing.
This question has not heretofore been raised in this State. The Supreme Court of Washington in Tacoma Eastern Railroad Co. v. Public Service Com.
We аre of the opinion that it was not the intention of the legislature that an order awarding reparation in a case such as this shall be reviewed on appeal. Under this view other questions raised on this record become immaterial.
The judgment of the circuit court in setting aside the award of the commission was erroneous and will be reversed
Judgment reversed.