Cawker v. Meyer
| Decision Date | 14 November 1911 |
| Citation | 147 Wis. 320,133 N.W. 157 |
| Parties | CAWKER ET AL. v. MEYER ET AL., RAILROAD COM'RS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.
Action by Sarah M. Cawker and another against B. H. Meyer and others, Railroad Commissioners. From an order overruling a demurrer to the complaint, defendants appeal. Affirmed.
Action to restrain the Railroad Commission of Wisconsin from enforcing the provisions of chapter 499, Laws of 1907, adding sections 1797m--1 to 1797m--108 to Stats. 1898, as against the plaintiffs. The complaint alleged:
“First. That these plaintiffs are, and at all the times hereinafter mentioned were, duly qualified and acting as executors of and trustees under the last will and testament of E. Harrison Cawker, deceased, and under and by virtue of letters testamentary, duly issued to them out of the county court in and for the county of Milwaukee, in the state of Wisconsin, and that these plaintiffs are, and at all times hereinafter mentioned were, as such executors and trustees, the owners in fee simple and in possession of certain real estate known and described as lot numbered eleven (11), and the south half of lot numbered twelve (12), in block numbered fifty-seven (57), in the fourth ward of the city of Milwaukee, county of Milwaukee, and state of Wisconsin.
Second. That said defendants are, and for some time last past were, the duly appointed and qualified members of the Railroad Commission of Wisconsin.
Third. These plaintiffs further show that, in or about the year 1896, these plaintiffs caused to be erected and constructed upon said premises a certain building, known as the Cawker building, designed and intended by these plaintiffs to be rented for stores, offices, and light manufacturing purposes. That at the time of the erection of said building, as aforesaid, these plaintiffs caused to be installed therein a steam plant for the generation of heat, electric light, and power, for the purpose of heating and lighting said building, and furnishing electric light and power to such of the tenants and occupants of said building as should desire the same.
Fourth. That, in order to operate said steam plant with economy, it is necessary to operate the same so as to generate heat, light, and power to the full capacity of said plant, and that after the completion of said building and the installation therein of said steam plant these plaintiffs found that they were unable to make use of the full capacity of said power plant in the heating and lighting of said building, and in furnishing to the tenants thereof as much light and power as said tenants desired to purchase, and that, in order to operate said plant with economy, it would be necessary for them to dispose of their surplus heat, light, and power to other persons.
Fifth. These plaintiffs further show that, for the purpose of enabling them to operate their said plant with economy, they entered into contracts with three persons occupying premises adjacent to said Cawker building, to furnish them with light and power from their said plant, to wit, Otto Pietsch Dye Works, F. H. Feldman, and G. Logemann & Son Company, and that they also entered into a contract with said G. Logemann & Son Company to furnish to said G. Logemann & Son Company steam heat, for the purpose of heating the premises immediately adjoining said Cawker building on the north, and that the furnishing of such heat, light, and power to said three persons, or corporations, is merely incidental to the furnishing of heat, light, and power for their own use in said Cawker building, and for the use of the tenants occupying said Cawker building, and for the purpose of enabling these plaintiffs to operate their said power plant economically.
Sixth. These plaintiffs further show that they have not at any time applied for or received any permit from the city of Milwaukee to make use of any street or alley in said city, nor have they ever held themselves out as able to or willing to furnish light, heat, and power to the public, or to any person or persons, other than the persons above named, or their predecessors in the occupancy of the premises now occupied by said three persons. That there are two public utilities in said city of Milwaukee engaged in the production, transmission, delivery, and furnishing of heat and light, operating under intermediate permits.
Seventh. These plaintiffs further show that said defendants have demanded of these plaintiffs that they comply with the provisions of chapter 499, Laws of 1907, and the various acts amendatory thereof, entitled ‘An act to create section 1797m--1 to 1797m--108, inclusive, Statutes of 1898, giving the Wisconsin Railroad Commission jurisdiction over public utilities, providing for the regulation of such public utilities, appropriating a sum sufficient to carry out the provisions of this act, and repealing certain acts in conflict with the provisions hereof,’ and have threatened to cause the Attorney General of the state of Wisconsin to prosecute these plaintiffs under the provisions of said act, in case of their failure or neglect to comply therewith; and these plaintiffs further show that they are advised and believe that said chapter 499 of the Laws of 1907, and of the several acts amendatory thereof, are not applicable to these plaintiffs, or to any person or persons operating a light, heat, and power plant under conditions similar to those under which these plaintiffs are operating their said heat, light, and power plant in said Cawker building; that the provisions of...
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