City of Ashland v. Wheeler

• Decision Date: 13 November 1894
• Citation: 60 N.W. 818,88 Wis. 607
• Parties: CITY OF ASHLAND v. WHEELER.
• Court: Wisconsin Supreme Court

88 Wis. 607

60 N.W. 818

CITY OF ASHLAND

v.WHEELER.

Supreme Court of Wisconsin.

Nov. 13, 1894.

Appeal from circuit court, Ashland county; John K. Parish, Judge.

Sam Wheeler was convicted of unlawfully exacting excessive rates for water rent while acting as agent of the Ashland Water Company, and appeals. Reversed.

The defendant was prosecuted for willfully and unlawfully exacting and receiving, as a servant and agent of the Ashland Water Company, a corporation of the city of Ashland, from James Anderson, a person whom it was bound to furnish with water for residence purposes in said city, an amount in excess of the established rates, as fixed by sections 1, 2, 3, and 4 of an ordinance of said city, entitled “An ordinance to establish and fix the rate or rates to be charged by the Ashland Water Company to its consumers under their franchise,” to wit, the sum of $10 for a semiannual payment, when the rate fixed by said ordinance was $5.25, contrary to the charter and ordinance of the city, etc. The answer of the defendant was a general denial. Upon trial before the court and jury, a verdict of guilty was given against the defendant, and it was adjudged that he pay a fine of $10 and costs, from which he appealed. The defendant admitted the receipt by him, as superintendent of the Ashland Water Company, of $10, from Anderson, for the semiannual payment for furnishing said Anderson at his residence, in said city of Ashland (an eight-room house, with closet), with water for the same; and the material question was whether the rate therefor was governed by the provisions of the ordinance mentioned in the complaint, enacted August 22, 1893, or by prior ordinances passed by the town board of Ashland, conferring upon the Ashland Water Company its franchise of furnishing the village of Ashland with water, and fixing the rates therefor, etc., and which had been combined into one ordinance, and adopted and enacted by the common council of the city of Ashland, August 2, 1887. The water company constructed and operated its works and furnished water to the village, and afterwards city, of Ashland, under these ordinances, until the ordinance mentioned in the complaint was enacted. The town of Ashland included the unincorporated village of that name, containing more than 1,000 inhabitants when the franchise was granted to the water company, and became incorporated as a city in April, 1887. The town had passed various ordinances which purported, by their terms, to be contracts between it and the Ashland Water Company as to the rates for furnishing water to the village and to its inhabitants; and this franchise, it was originally stipulated, should be perpetual, and all rights, privileges, and franchises secured to the water company by the former ordinances were granted and secured to it by the city ordinance, subject to certain modifications, with the same effect “as if all the said ordinances had been duly passed and adopted from time to time by the mayor and common council of the city, after its organization.” By the terms of this city ordinance the franchise was limited in duration to 50 years, and the water company agreed to provide and supply water to the city of Ashland and its inhabitants for fire protection and domestic purposes for the term of 50 years, the city agreeing to pay for the 54 pay fire hydrants already established, at the rate of $100 each per annum, and the water company agreeing to furnish 8 free fire hydrants in addition thereto, and the city agreeing to pay for the next 46 pay fire hydrants from time to time, at the rate of 10 per mile on future extensions, at the rate of $60 each per annum, and for all pay fire hydrants in excess of the number of 100 located from time to time, at the rate of 10 per mile on future extensions, at the rate of $50 each per annum, and to annually levy and collect a tax to meet the payment for all hydrant rentals under such ordinance. One of the ordinances so consolidated in and adopted by said city ordinance further provided that the water company, its successors and assigns, should not charge to consumers during the continuance of their franchise exceeding certain rates set out in a schedule, made a part thereof, and by which such rates were to be collected in semiannual installments in advance, but that a meter might be inserted, at the discretion of the company, and the consumers supplied and charged at meter rates. It was provided by said ordinance for a written acceptance thereof by the Ashland Water Company, and thereupon the ordinance so accepted should constitute the contract on the part of the state, and be the measure of the rights and liabilities of the city of Ashland and of the Ashland Water Company, its successors and assigns; and it was further provided that the mayor and city clerk should, upon such acceptance, seal duplicate copies of the ordinance with the seal of the city, and sign the same in the name and on behalf of the city, and deliver one of them, so sealed and signed, to the Ashland Water Company, and to receive the other in behalf of the city when signed and sealed by the water company, and to cause such copy and acceptance to be recorded in the office of the recorder of deeds of Ashland county. Evidence was given tending to show the acceptance of the ordinance by the waterworks company, and also by the city of Ashland. The subsequent city ordinance of August 22, 1893, mentioned in the complaint, established and fixed the rate or rates to be charged by the Ashland Water Company to its consumers under its franchise at substantially 50 per cent. of the rate stipulated and fixed by the original ordinance, and provided, among other things, that it should be “unlawful for the water company, its servants, agents or employés, to charge, exact or receive from any consumer, person or persons to whom they may or shall furnish water in the city of Ashland an amount in excess of the rate herein established and fixed; * * * and that any corporation, association, person or persons who shall violate this ordinance, or any part thereof, shall on conviction be punished by payment of a fine of not less than $10 or more than $100, and by imprisonment in the city jail not less than 30 days or more than six months, or both such fine and imprisonment, in the discretion of the court.” The fifth section provided that “all ordinances or parts or ordinances in conflict with this ordinance are hereby repealed.” The annual rate for supplying Anderson with water would be $20 under the original ordinance, but under the ordinance of August 22, 1893, it would be about $10. The city of Ashland was incorporated upon the same territory as the village of Ashland, by chapter 127, Private & Local Laws 1887; and in 1884, when the first ordinance was adopted, the village had between 2,000 and 3,000 inhabitants. The water company built its works in 1884, at an expense of at least $100,000, and subsequently expended $100,000 in extensions and improvements,...