City of Milwaukee v. Public Service Commission

• Decision Date: 28 June 1960
• Citation: 104 N.W.2d 167,11 Wis.2d 111
• Parties: CITY OF MILWAUKEE, Milwaukee County, as a Water Public Utility, Appellant, v. PUBLIC SERVICE COMMISSION, etc., Respondent (four cases).
• Court: Wisconsin Supreme Court

Page 167

104 N.W.2d 167

11 Wis.2d 111

CITY OF MILWAUKEE, Milwaukee County, as a Water Public Utility, Appellant, v. PUBLIC SERVICE COMMISSION, etc., Respondent (four cases).

Supreme Court of Wisconsin.

June 28, 1960.

John J. Fleming, City Atty., Harry G. Slater, Deputy City Atty., Milwaukee, for appellant.

John W. Reynolds, Atty. Gen., William E. Torkelson, Chief Counsel, P. S. Comm. Madison, Fraley N. Weidner, Harry J. Hayes, George D. Prentice, Milwaukee, for respondent.

BROADFOOT, Justice.

Orders or determinations of the public service commission are reviewable in the manner provided in ch. 227, Stats. All references herein to statutes are to the 1957 statutes. Sec. 227.15, provides:

'Administrative decisions, which directly affect the legal rights, duties or privileges of any person, * * * shall be subject to judicial review as provided in this chapter; * * *'.

Sec. 227.16 provides in part:

'(1) Except as otherwise specifically provided by law, any person aggrieved by a decision specified in section 227.15 and directly affected thereby shall be entitled to judicial review thereof as provided in this chapter. * * *'

In Town of Greenfield v. Joint County School Committee, 271 Wis. 442, 447, 73 N.W.2d 580, 583, we held:

'The right of appeal is statutory and does not exist except where expressly given, and cannot be extended to cases not within the statute. A person is aggrieved by a judgment whenever it operates on his rights of property or bears directly on his interest. An 'aggrieved party' within the meaning of a statute governing appeals is one having an interest recognized by law in the subject matter which is injuriously affected by the judgment. In re Fidelity Assur. Ass'n, 1945, 247 Wis. 619, 20 N.W.2d 638. The word 'aggrieved' refers to a substantial grievance, a denial of some personal or property right or the imposition of a burden or obligation. Bowles v. Dannin, 1938, 62 R.I. 36, 2 A.2d 892. * * *'

The above quotation was cited with approval in In re Reorganization of Certain School Districts in Village of Brown Deer (Milwaukee v. Milwaukee County School Committee), 8 Wis.2d 226, 229, 99 N.W.2d 186. Milwaukee contends that the court was there dealing with the school laws and those decisions are not applicable to petitions for review under ch. 227, Stats. However, the expression 'aggrieved party' or a statement of when a person is aggrieved by a judgment or order has the same meaning under any section of our statutes unless specifically limited or expanded by the words of the particular statute. Sec. 227.01(2) reads as follows:

"Contested case' means a proceeding before an agency in which, after hearing required by law, the legal rights, duties or privileges of any party to such proceeding are determined or directly affected by a decision or order in such proceeding and in which the assertion by one party of any such right, duty or privilege is denied or controverted by another party to such proceeding.'

In Park Bldg. Corp. v. Industrial Commission, 9 Wis.2d 78, 92, 100 N.W.2d 571, 579, we cited the above subsection and quoted with approval from an article on the Wisconsin Administrative Procedure Act by Ralph M. Hoyt which appeared in 1944 Wisconsin Law Review, 214, 220, as follows:

'It should be noted that these rules are made applicable only to 'contested cases,' which are defined in the opening section of the act as proceedings in which 'the legal rights, duties, or privileges of specific parties are required by law to be determined by decisions or orders addressed to them or disposing of their interests after opportunity for hearing.' Thus, the rules apply only to those situations in which the law already requires an opportunity for hearing to be offered. The procedure act does not itself specify or determine what types of cases require a hearing; that is a matter which is left for specification in the particular regulatory act which the agency administers.'

We thereby adopted that language and that interpretation of the scope of ch. 227 as our own.

The issue in these cases is whether or not the city of Milwaukee is an aggrieved party in contested cases so that it is entitled to a judicial review of the determinations and orders of the public service commission.

Milwaukee contends that it is an aggrieved party in contested cases under the provisions of ch. 227 because it has an indeterminate permit as a water public utility in each of the two villages and in the city of Glendale. Its argument is based on the fact that it operates a municipal water utility system within Milwaukee county and that its operations are governed by applicable provisions of the Wisconsin statutes and that it is subject to regulation by the commission.

It is established that Milwaukee as a utility has for many years sold water to the villages of Whitefish Bay and Fox Point at wholesale, in compliance with the rules and regulations, service standards and rates prescribed by the commission. Fox Point and Whitefish Bay have their own distribution systems and they distribute the water so purchased at wholesale to the inhabitants of their respective villages by means thereof. Milwaukee contends that under sec. 66.069(2)(a), Stats., a city owning a water plant may serve persons or places outside of its corporate limits, including municipalities, and may interconnect with another municipality, whether contiguous or not. It is argued that since Milwaukee performs public utility functions by supplying water, it follows that Milwaukee must be deemed to have a franchise to furnish said water to the other municipalities.

The commission determined throughout that Milwaukee had no grant, franchise or indeterminate permit to operate as a public utility in Whitefish Bay, Fox Point or Glendale. Milwaukee cites as authority for its position the determination of the commission in City of Wauwatosa as a Water Public Utility v. City of Milwaukee as a Water Public Utility, 43 P.S.C.Reports, 124. In that case the city of Wauwatosa, as the petitioner, alleged that the city of Milwaukee was operating under an indeterminate permit granted by the state of Wisconsin. The commission made no such finding in that case, but held that Milwaukee had furnished water to other adjacent municipal water public utilities for resale and its actions constituted a volumtary holding out by it to furnish water for resale to other water public utilities operated by municipalities in Milwaukee county contiguous to it, and thereby assumed an obligation as a water public utility to provide such a service to any municipal water utility so located. That is far from saying that Milwaukee had an indeterminate permit in the other municipalities to which it furnished water for resale.

Milwaukee calls attention to the fact that the commission permits it to make a demand charge for fire protection to the villages and therefore it has a franchise with respect to this type of service as well as with reference to its wholesale service. In support thereof it cites Wisconsin Power & Light Co. v. City of Beloit, 215 Wis. 439, 254 N.W. 119 and Calumet Service Co. v. City of Chilton, 148 Wis. 334, 135 N.W. 131. The cases are readily distinguishable and do not control or apply to the cases before us. The fact that Milwaukee is permitted to charge a rate because of a possible demand for water for fire protection cannot result in an indeterminate permit for that limited service.

Existence as a public utility does not result in the grant of an indeterminate permit. Muscoda Bridge Co. v. Village of Muscoda, 193 Wis. 457, 459, 214 N.W. 435; South Shore Utility Co. v. Railroad Comm. 207 Wis. 95, 106, 240 N.W. 784.

Sec. 196.01(5), Stats., provides that an indeterminate permit is based on a grant by the state, directly or indirectly. An indirect grant must of necessity be a grant or franchise by a municipality. Milwaukee can show no such grant.

An area of Glendale east of North Port Washington road and south of the Milwaukee river has been served with water for some time by Milwaukee. The application of the city of Glendale for authority to transact business as a water public utility and to construct facilities did not include that area of the city. Milwaukee makes a claim to having an indeterminate permit in the city of Glendale because of the provisions of sec. 66.061(1)(d), Stats., which reads as follows:

'Whenever any city or village at the time of its incorporation included within its corporate limits territory in which a public utility, prior to such incorporation, had been lawfully engaged in rendering public utility service, such public utility shall be deemed to possess a franchise to operate in such city or village to the same extent as though such franchise had been formally granted by ordinance duly adopted by the governing body of such city or village. This paragraph shall not...