City of Milwaukee v. Pub. Serv. Comm'n
| Decision Date | 13 October 1942 |
| Citation | 241 Wis. 249,5 N.W.2d 800 |
| Parties | CITY OF MILWAUKEE v. PUBLIC SERVICE COMMISSION et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Dane County; August C. Hoppmann, Judge.
This action was commenced on March 6, 1941, by the city of Milwaukee, plaintiff, against the Public Service Commission and Town of Milwaukee, defendants, to review an order of the Public Service Commission. The action was tried by the court and judgment entered on February 3, 1942, dismissing plaintiff's action.
Plaintiff appeals.
The material facts will be stated in the opinion.
Reversed.
Walter J. Mattison, City Atty., and Joseph L. Bednarek, Asst. City Atty., both of Milwaukee, for appellant.
C. R. Dineen, of Milwaukee (James E. McCarty, of Milwaukee, of counsel), for respondent Town of Milwaukee.
John E. Martin, Atty. Gen., and Newel S. Boardman and H. T. Ferguson, Asst. Attys. Gen., for respondent Public Service Commission.
By order of the Public Service Commission, plaintiff City of Milwaukee was required to extend its water service in the town of Milwaukee to certain described premises in the town. Plaintiff (1) denies the jurisdiction of the Public Service Commission to compel the extension, (2) assuming jurisdiction in the commission, objects to the reasonableness of the order upon the grounds that the costs and difficulty of furnishing service is out of proportion to the needs for service involved, and (3) contends that the rate ordered will occasion loss to the plaintiff and constitute a burden upon its customers. The following are the facts necessary to an understanding of the controversy:
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The city of Milwaukee operates a water works utility. By contract with the town of Milwaukee it had extended service to residents of the town residing in certain streets in a limited area. This was in the vicinity of Green Bay Avenue. Under the terms of this contract, the town of Milwaukee laid mains at its own cost to the Milwaukee city limits, and connected with the Green Bay Avenue feeder main. This contract expressly prohibited the town from extending its main to any other streets than those described in the contract, or to sell or to deliver water to any other individual or property. The town of Milwaukee also received some water from the city of Milwaukee utility as a result of a contract with the village of Fox Point. The village of Fox Point takes water from the Milwaukee utility and in order to get the water constructed a main along the Port Washington Road in the town of Milwaukee to connect with the Milwaukee main at Hampton Avenue. As a part of its easement agreement with the town of Milwaukee, residents of the town abutting the Port Washington Road were permitted to obtain water from the main for domestic uses only. The city of Milwaukee consented to this use and the contract restricted the town to one-inch mains and four fire hydrants. The point at which the Fox Point pipe connects with the Milwaukee main is the intersection of Hampton Avenue and Port Washington Road. The Milwaukee main runs from this point east for half a dozen blocks to Santa Monica Avenue where it connects with a main running north from East Capitol Drive extending along Santa Monica Avenue the full length of the village of White Fish Bay and serving that village. The area seeking service in this case is a small triangular tract beginning on the east side of the Port Washington Road, a short distance north of Hampton Avenue, extending north to West Marne Avenue, thence southeasterly to north Second Street, thence south, to a point slightly north of Hampton Avenue. This is a real-estate subdivision and the impetus to get water comes from the desire of the promoters for the advantages of city water. The tract is twenty-nine acres in extent, appears to cover four platted blocks, and has upon it thirty-three homes and one hundred one vacant lots. The estimated population will be 549 people when fully built up. One of the city's objections to serving this area, which presently is getting its water from private wells, is that the pressure on the Santa Monica, Hampton, Fox-Point line is not enough to take care of any more customers in the town of Milwaukee, and that as a result a ten-inch main off the Green Bay Road running east to Hampton Avenue would have to be built or a main which runs for a couple of blocks on the Port Washington Road north from East Capitol Drive would have to be extended north to the intersection of the Port Washington Road and Hampton Avenue. The construction of either main would require the expenditure of from thirty to forty thousand dollars and the mains when so constructed would be of considerably greater capacity than necessary or proper to serve the area presently requesting water. It is claimed that to require the expenditure would be unreasonably burdensome upon plaintiff; that at present rates, plaintiff could not possibly earn on this investment; that the number of people demanding service is so small and the prospects of their increasing so slight that this service cannot be furnished economically and would have to be recompensed for by rates much above those charged currently by the plaintiff.
Plaintiff assumes that the question is whether the Public Service Commission has jurisdiction to compel a municipally owned water works utility to extend its service into an adjoining township and render water service in a new area. The question is narrower than this. It is whether a municipal utility which, by contract with an adjoining town, has assumed to serve small, isolated and precisely limited portions of a town, has become a utility throughout that entire town, and bound to extend its service in response to orders of the Public Service Commission. In Pabst Corporation v. Milwaukee, 190 Wis. 349, 208 N.W. 493, 45 A.L.R. 1164, it was held that the city of Milwaukee was a municipal water utility, subject to regulation and control by the Railroad...
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