City of Milwaukee v. Public Service Commission

• Decision Date: 09 November 1954
• Citation: 66 N.W.2d 716,268 Wis. 116
• Parties: CITY OF MILWAUKEE, a Municipal corporation, and as a Water Public Utility, Appellant, v. PUBLIC SERVICE COMMISSION et al., Respondents.
• Court: Wisconsin Supreme Court

Page 716

66 N.W.2d 716

268 Wis. 116

CITY OF MILWAUKEE, a Municipal corporation, and as a Water Public Utility, Appellant, v. PUBLIC SERVICE COMMISSION et al., Respondents.

Supreme Court of Wisconsin.

Nov. 9, 1954.

North and northwest of it lie the E. R. Godfrey & Sons Co., Continental Can Co., Schlitz Brewing Co. and Western Electric Co.; east of it lie Worden-Allen Co. and Square D Co., all within the limits of Glendale and all receiving water from Milwaukee. The boundary line between Milwaukee and Glendale runs north and south through the General Motors property here involved. The building is approximately 345 feet long from east to west, 83 feet of which lie in the city of Milwaukee and the remaining portion in Glendale.

In January 1950 General Motors Corporation applied to the city of Milwaukee for water for its premises, submitting the usual agreement and bond for water service outside of the city limits. In February 1950 the common council granted water service for that portion of the building located in Milwaukee, including water for steam boilers located partly in Milwaukee and partly in Glendale, with the understanding that the steam generated in the boilers was to be used only in that part of the building located in Milwaukee. Such service is provided through a 12 inch main on Port Washington Road which connects with a 54 inch main extending along Capitol Drive.

In April 1951 the city clerk of Milwaukee advised the city attorney that the city would grant permission for water service to General Motors Corporation providing no precedent was established whereby it would be obliged to furnish water to others in Glendale. In June 1951 the city denied the corporation's application as to that portion of the building located in Glendale. The city of Glendale does not operate a water public utility.

A petition was filed by General Motors Corporation with the Public Service Commission, hearing was had, and the commission found that the city of Milwaukee, as a water public utility, has been and is engaged in supplying water in certain areas outside the city, including the so-called Milwaukee Ordnance Area located north of West Capitol Drive, east of Port Washington Road and west of North Richards Street; that the premises of General Motors Corporation are located in the area in which the city of Milwaukee has and does serve the public as a water public utility and has held itself out to serve the public; that water is needed in that part of the building located in Glendale and that the city of Milwaukee is the only source of water except as would be available through construction of a well which would be prohibitively expensive; that water may be obtained from the city of Milwaukee by the connection of a two-foot length of pipe between that part of the building in Milwaukee and that part located in Glendale. It found that the city of Milwaukee water utility has a sufficient supply of water, mains, pumping capacity and financial resources to furnish water to the corporation from its mains on Port Washington Road. It further found that the utility has been required to serve water to the public in the Milwaukee Ordnance Area, in which that part of the building not in the city of Milwaukee is located, and that the city of Milwaukee has and does serve the public with water in said area.

On the basis of its findings the commission ordered that the city of Milwaukee render water servie at established rates to the corporation in that part of the premises located in Glendale.

Walter J. Mattison, City Atty., Milwaukee, Richard F. Maruszewski and John F Cook, Asst. City Attys., Milwaukee, for appellant.

Emmet Horan, Milwaukee, for General Motors Corp.

Vernon W. Thomson, Atty. Gen., and William E. Torkelson, Madison, Chief counsel PSC, for PSC.

C. R. Dineen, City Atty., William C. Dineen, Frank C. Kenney, Milwaukee, of counsel, for respondents.

MARTIN, Justice.

Appellant challenges the jurisdiction of the Public Service Commission to make the order here in question.

The water system of the city of Milwaukee is a public utility subject to regulation as is any other public utility, Pabst Corporation v. City of Milwaukee, 1926, 190 Wis. 349, 208 N.W. 493, 45 A.L.R. 1164; Flottum v. City of Cumberland, 1940, 234 Wis. 654, 291 N.W. 777, and it is well established that in maintaining and operating such system the city is acting in its proprietary capacity, Milwaukee Electric Ry. & Light Co. v. City of Milwaukee, 1932, 209 Wis. 656, 245 N.W. 856; City of De Pere v. Public Service Comm., 1954, 266 Wis. 319, 63 N.W.2d 764.

Every public utility has the obligation, within the scope of its undertaking, to furnish its service to all who reasonably require it. Northern States Power Co. v. Public Service Comm., 1944, 246 Wis. 215, 16 N.W.2d 790; Lodi Telephone Co. v. Public Service Comm., 1952, 262 Wis. 416, 55 N.W.2d 379, 57 N.W.2d 700; 43 Am.Jur., Public Utilities and Services, sec. 22. The duty to enforce such obligation is imposed upon the Public Service Commission. Section 196.37(2), Stats. In the case of a municipal utility that jurisdiction is not limited to the boundaries of the municipality but extends to all areas where the utility has undertaken to serve. City of Milwaukee v. Public Service Comm., 1942, 241 Wis. 249, 5 N.W.2d 800; City of Milwaukee v. Public Service Comm., 1948, 252 Wis. 358, 31 N.W.2d 571.

The basic question here is whether appellant has extended its service and is holding itself out to serve in the general area within the city of Glendale in which the General Motors building is located. This is a question of fact, and the Commission found:

'3. That at all times since the filing of this application herein, the premises occupied by the applicant have been located partly in the city of Milwaukee and partly in the city of Glendale, and are included in the area in which the city of Milwaukee, as a water public utility, has and does serve the public and does and has held itself out to serve the public.'

If there is substantial evidence to support this finding, it will be upheld on appeal. Gateway City Transfer Co. v. Public Service Comm., 1948, 253 Wis. 397, 34 N.W.2d 238.

From the exhibits in evidence the line between Milwaukee and Glendale forms a peninsula or pocket-shaped area in the city of Glendale bounded by North Port Washington Road on the west, West Capitol Drive on the south, North Richards Street on the east and the Milwaukee River on the north. A map of this area, Exhibit 7 printed herewith, was prepared under the direction of Donald W. Webster who was town engineer for the town of Milwaukee which is now the city of Glendale. This map shows that the General Motors building is 300 feet south of the E. R. Godfrey & Sons property, about 150 feet west of the Worden-Allen Company, which is about 250 feet west of the Square D Company and about 700 feet south of the Continental Can Company which is immediately south of the Schlitz Brewing Company property. Mr. Webster testified that the vicinity of the General Motors building is generally considered to be industrial and light manufacturing.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It is undisputed that all of these companies mentioned are located in whole or in part outside of the Milwaukee city limits and that they are receiving water from the city of Milwaukee. For a more thorough understanding of how this situation came about we have taken judicial notice of the Reports of the Public Service Commission, Wisconsin Power & Light Co. v. City of Beloit, 1934, 215 Wis. 439, 254 N.W. 119, in the matter of Milwaukee Water Utility--Service to School District No. 1, 35 P.S.C.W.R. 328, in which the commission ordered the city of Milwaukee water utility to continue to render water service to School District No. 1 of the town of Milwaukee, Wisconsin Can Company, Industrial Research Laboratories, Schlitz Brewing Company and E. R. Godfrey & Sons Company.

These applicants were located in a tract...