Calumet Serv. Co. v. City of Chilton

• Decision Date: 04 March 1912
• Citation: 148 Wis. 334,135 N.W. 131
• Parties: CALUMET SERVICE CO. v. CITY OF CHILTON.
• Court: Wisconsin Supreme Court

148 Wis. 334

135 N.W. 131

CALUMET SERVICE CO.

v.CITY OF CHILTON.

Supreme Court of Wisconsin.

Feb. 20, 1912.

Concurring Opinion, Feb. 23, 1912.

Additional Opinion, March 4, 1912.

Syllabus by the Judge.

Equitable action closed by findings in some 14,000 words. An assignable privilege was granted by a city to do public utility service therein for public and domestic purposes with usual incidental rights. The privilege was exclusive as to city service for a time and preferential thereafter and exclusive for a longer term as to domestic service. The business was established. The entirety was vested in plaintiff before commencement of the action. There were four corporation owners in the chain of title and questions as to some respecting corporate power,--particularly as to the second corporation which, in due form, acquired an indeterminate permit for the old privilege under chapter 499, Laws of 1907. The exclusive city term had expired but service was continuing. Thereafter the city sought to enforce conditions of the old privilege; to invade the field claimed to be exclusive, incident to the permit; to establish a business to that end; and incur indebtedness therefor without complying with the public utility law, claiming rights under statutes antedating such law. The impeachment of plaintiff's claimed rights caused it pecuniary loss and prejudiced it in performance of its duties, and made further loss imminent. Except for disturbance thus caused, plaintiff and its predecessors were willing and competent, substantially all the time, to perform their public utility duties.

The decision involves these points:

Section 2863 of the Code should be reasonably followed below, in the circumstances stated therein, by a decision stating “separately all the facts found.”

“Facts” means pleadable facts.

“Separately” refers to pleadable or pleaded facts, each being required to be covered by a finding confined thereto.

A decision under section 2863 of the Code should contain one finding for each actually, or in effect, pleaded fact, upon which the parties depend, phrased in concise, clear, judicial language, avoiding repetition, elaboration, discussion, and evidence or evidentiary facts or circumstances.

Compliance with the Code, as indicated, is to be striven for, to minimize unnecessary judicial labor, raise the grade of it, increase judicial efficiency, and promote economy and certainty in the administration of justice.

The sole purpose of chapter 499, Laws of 1907 (sections 1797m1 to section 1797m108, Stats.), was to promote general welfare by affording public utility service directly and indirectly to and for the public, of the highest practicable efficiency, at the lowest practicable rates under the circumstances of each particular case, having regard for existing proprietary interests and reasonable opportunity for municipal ownership on a basis of justice to existing proprietors.

Ambiguous parts, if there be any, of the public utility law, should be read in the most reasonably favorable light to effect the manifest purpose, comprehensive definitions of the law being adhered to regardless of technical meaning of terms.

The basic idea of the public utility law is stated in section 1797m3, thus: “Every public utility is required to furnish reasonably adequate service and facilities,” etc. “The charge * * * shall be reasonable and just, and every unjust or unreasonable charge * * * is prohibited and declared unlawful.”

The duty and responsibility indicated in No. 8 applies to municipalities engaged in public utility business.

Those parts of the law, other than the one declaring the purpose, are auxiliary thereto,--a prescription of means for effecting the end aimed at.

The dominant means was classification of existing and prospective privileges to do public utility business, making the latter indeterminate and conditionally exclusive and inducing each owner of the former to join the latter as to the scope of the then existing privileges by acquiring an indeterminate permit; thus gathering all into a single class referable directly to a single source for existence and to a single standard for a measure of right duties, responsibilities, and advantages, i. e. the public utility law, and a single control, the Railroad Commission, subject to the conditions and limitations of such law.

For detail means, by section 1797m1, the person or persons, natural or artificial, in touch with the public in connection with public utility service, whether as owner, operator, manager, or controller, or private or quasi-public entity, is a public utility, the physical and other things in use, public utility property, and the subject of the service,--a utility,--the term “public utility” being used to characterize the physical situation and condition as to immediate authority over it.

One, natural or artificial, public or private, municipal or otherwise, answering to the calls of section 1797m1 of the Statutes, viewing the descriptive words in the broadest reasonable sense, and disregarding technical capacity to hold and enjoy in præsenti, was, for regulation and control to effect the end sought, given the status indicated, subject to prescribed duties and responsibilities, with corresponding advantages, all subject to the single control under the single standard.

“Directly or indirectly to or for the public,” includes service whether to a municipality or its inhabitants, or both, or by a municipality for itself or its inhabitants.

A privilege within the scope of No. 14, whether a license, permit, or technically a franchise, is the latter in the statutory sense.

An indeterminate permit is a perpetual exclusive privilege within the scope of the grant, subject to the Code of conditions and limitations.

An indeterminate permit duly received for an old privilege is of the same scope as the latter as to the privilege feature, freed from all considerations, limitations, reservations, and control incident prescribed by the municipality as a state agency, including the right of repeal, if any reserved, but subject to the conditionsand limitations of the public utility law.

The law contemplates all relations created by a municipality between it and the grantee of a franchise and inhering therein as being the mutual creation of the state, through its agent, and the grantee, and subject to termination by the same mutuality.

The essentials of “public utility” to acquire an indeterminate permit for an old privilege, are referable to section 1797m1 of the Statutes; that of corporate status is satisfied by corporate existence de jure or de facto, referable to Wisconsin written law; that of existing privilege, by ownership of any right from the municipality, whether resting in grant, permit, license, or franchise in the technical sense, either being a statutory franchise; and that of operating under the privilege in præsenti; services offered and affordable, and willingness and ability in that regard, except for reasonable and excusable cessations not involving any purpose to abandon.

Want of corporate power referable to defect in organization and not militating against existence de facto, or referable to limitations of corporate purpose specified in the organic articles, which under ordinary circumstances are only subject to be inquired into by the state, directly, does not affect capacity to acquire an indeterminate permit.

The general grant of power under the circumstances specified in section 1797m77 of the Statutes, to acquire an indeterminate permit, by necessary implication was intended to enlarge, if necessary, corporate powers, enabling the organization to legitimately deal with the state in the exchange of equivalents,--to surrender its rights, whatever they may be, and take and enjoy the one offered in lieu thereof.

The privilege, conditional and temporary or otherwise under a grant through municipal agency, to supply a municipality with a particular utility, using the public places to that end, in case of exchange thereof for the indeterminate permit of the statute, retains in the substituted franchise the privilege features, with the added element of perpetuity and the element of exclusiveness, freed from all prior conditions and limitations, but subject to those of the public utility law.

An indeterminate permit as in No. 22, within its scope, as to the municipality for its own service or service by it to its inhabitants, or service to others by any other public utility, is characterized by the elements of perpetuity and exclusiveness, mentioned.

The purpose of the law was to give the holder of an indeterminate permit, as in Nos. 22 and 23, as regards the conditions existing at the time of its origin, a qualified monopoly within the scope of the privilege, subject to the conditions and limitations of the public utility law,--the term “monopoly” not being used in its common-law sense, except as to exclusiveness, but being characterized by purpose to promote public welfare, by a return consideration and by not being of common right, instead of being otherwise but for the grant and being for private gain.

Given a field, occupied under section 1797m77 of the Statutes, for service to a municipality and its inhabitants, and the city will be incompetent to interfere except upon obtaining from the governing commission a certificate of public convenience and necessity, evidencing that reasonably efficient service at just and reasonable rates is not obtainable under the existing privilege, or by otherwise complying with the public utility law.

The statutory conditions which preceded the public utility law, empowering a municipality to construct or own public utility property for municipal or general use, within the municipality and incur indebtedness therefor, was so superseded by such law as to render the latter paramount and the former subsidiary, making such statutory conditions usable only conditioned upon municipal compliance...