The arguments advanced in support of respondent's petition for rehearing and the motions of the city of Chicago and members of the Illinois Commerce Commission asking leave to intervene indicate there is gross misapprehension as to the real issue in this case. In Sprague v. Biggs, 390 Ill. 537, it was held that the record showed that the rate of fare imposed on the utility was confiscatory, in that the operating income was insufficient to meet operating expenses. It was also held, against the utility's contention, that the record did not show a state *Page 567 of facts upon which a fare could be fixed that would produce a fair return on the investment. The cause was remanded with directions to proceed in accordance with the views expressed. If the distinction between the issue in a confiscation case and a review in this court on the commission's finding pursuant to section 68 of the Public Utilities Act (Ill. Rev. Stat. 1945, chap. 111 2/3, par. 72,) had been observed, there would have been no occasion for the instant action. The effect of the remanding order was that the commission should be enjoined from requiring the utility to operate on a schedule of fares that would not produce operating income sufficient to meet operating expenses. It was not the function of this court or of the trial court to determine what that fare should be. It is clear that the schedule of fares which was automatically restored when the utility's proposed schedule of 12 cents was permanently suspended by the commission is not sufficient, but neither this court nor the trial court could fix a reasonable fare in a confiscation case. An examination of the opinion adopted in this case and in Sprague v. Biggs will show that we did not hold that the 12-cent fare proposed by the utility was a reasonable fare. The amount of the increase over the schedule of fares now in force is for the commission to determine, and after the injunction is issued by the trial court as directed in the remanding order, the commission should proceed without delay to advance the schedule of fares to such a point as to check the confiscation decided inSprague v. Biggs by providing a return of income sufficient to meet operating expenses. The filing of inapt motions in this court, the trial court or before the commission (in attempts to relitigate that which has been determined) prolongs the confiscation.
The petition for rehearing is denied. The motions of the city of Chicago and the members of the commission for leave to intervene are also denied. It is ordered that the writ issue immediately. *Page 568