City of Plymouth v. R.R. Comm'n of Wis.

• Decision Date: 13 January 1931
• Citation: 204 Wis. 71,234 N.W. 333
• Parties: CITY OF PLYMOUTH v. RAILROAD COMMISSION OF WISCONSIN.
• Court: Wisconsin Supreme Court

204 Wis. 71

234 N.W. 333

CITY OF PLYMOUTH

v.RAILROAD COMMISSION OF WISCONSIN.^a1

Supreme Court of Wisconsin.

Jan. 13, 1931.

Appeal from an order of the Circuit Court for Dane County; A. G. Zimmerman, Circuit Judge.

Action by the City of Plymouth against the Railroad Commission of Wisconsin to vacate an order of the Commission which had dismissed a certain complaint previously filed by the City. From an order overruling a demurrer to the city's complaint, the Commission appeals.--[By Editorial Staff.]

Reversed and remanded, with directions.

Action commenced June 17, 1930, by the City of Plymouth against the Railroad Commission of Wisconsin, to vacate an order of the commission dated June 9, 1930. On January 21, 1930, the city of Plymouth filed a complaint with the Railroad Commission alleging that the Wisconsin Gas & Electric Company had unlawfully extended its lines for the purpose of rendering local electric service within certain portions of the town of Plymouth and praying for an order restraining that company from furnishing electrical service within any portions of the town of Plymouth except sections 5 and 6, in which sections the city does not question the right of the Wisconsin Gas & Electric Company to render such service. The commission thereupon conducted public hearings upon the complaint, and rendered a decision in which the commission found and declared that public convenience and necessity required the operation of the city of Plymouth as a second utility in the town of Plymouth, although such a declaration of public convenience and necessity had not been requested by the city. The complaint, however, was dismissed by an order of the commission dated June 9, 1930, upon the ground that the issues presented had been finally adjudicated by the Supreme Court in Wisconsin Gas & Electric Co. v. Railroad Commission, reported in 198 Wis. 13, 222 N. W. 783, and that the matter was therefore res adjudicata, and the commission without authority to act thereon.

This action was then brought, to have that order vacated, on complaint of the city. A demurrer to the complaint was filed by the commission, and overruled by an order entered October 20, 1930, and the commission appeals from that order.John W. Reynolds, Atty. Gen., and Samuel Bryan, Asst. Atty. Gen., for appellant.

Shaw, Muskat & Sullivan, of Milwaukee, for defendant.

George L. Mooney, of Plymouth (Alvin C. Reis, of Madison, of counsel), for respondent.

FRITZ, J.

This appeal presents at the outset the question of whether the adjudication in the case of Wisconsin Gas & Electric Co. v. Railroad Commission, reported in 198 Wis. 13, 222 N. W. 783, conclusively determined the respective rights of the city of Plymouth, and of the Wisconsin Gas & Electric Company, in relation to which the city, on its complaint filed with the commission January 21, 1930, sought an order restraining that company from furnishing electrical service within any portion of the town of Plymouth excepting sections 5 and 6. If by reason of the decision of the court in that case the matter is res adjudicata as to those rights, then the commission's order of June 9, 1930, is proper, and the trial court should have sustained the demurrer to the complaint in this action.

In relation to the doctrine of res adjudicata, this court has said:

“When the second action is upon a different claim or cause of action, the former judgment is only a bar as to matters actually presented and litigated therein.” Huntzicker v. Crocker, 135 Wis. 38, 41, 115 N. W. 340, 341, 15 Ann. Cas. 444.

“If the judgment in the former case does not actually decide the matters claimed to be res judicata, the question whether the issues as made up by the pleadings necessarily called for an adjudication thereon must be determined. If they did, then the judgment may constructively be held to have adjudged the matter; but, if they did not, then the former judgment is not res judicata.” Caley v. Weyerhaeuser State Bank, 186 Wis. 374, 378, 202 N. W. 682, 684.

“* * * In a subsequent litigation between the same parties or their privies upon a different cause of action the judgment is only conclusive as to those issues which were in fact adjudicated. [Citations.] To ascertain what those issues were, we may examine the proceedings, or extrinsic evidence may be considered. (Finding) Last Chance M. Co. v. Tyler M. Co., supra [157 U. S. 683, 15 S. Ct. 733, 39 L. Ed. 859]; (referee's finding) Lumber Co. v. Buchtel, 101 U. S. 638 ; (opinion) Legrand v. Rixey's Admin., 83 Va. 862, 867, 3 S. E. 864; (evidence) Washington G. Co. v. Dist. of Columbia, 161 U. S. 316, 329, 16 S. Ct. 564 . * * * While matters are not to be presumed to have been adjudicated on mere conjecture or possibility, unless the fact clearly appears, yet writings in judicial proceedings must have reasonable construction, and their language be taken as significant. New Orleans v. Citizens' Bank, 167 U. S. 371, 390, 17 S. Ct. 905 .” Grunert v. Spalding, 104 Wis. 193, 213, 214, 78 N. W. 606, 613, 80 N. W. 589.

The judicial proceedings in that former action disclose that the city of Plymouth and the Wisconsin Gas & Electric Company, as well as the Railroad Commission, were parties to that action, and presented testimony upon the merits on the hearings before the commission and the circuit court. The hearing before the commission resulted in its order of April 6, 1928, to vacate which that former action was brought. That order of April 6, 1928, was made after a hearing on the commission's motion, because the city of Plymouth had informally complained that the company had unlawfully extended its electrical lines in the town of Plymouth, and was engaged in such construction beyond sections 5 and 6. The commission's order of April 6, 1928, directed the company to “cease and desist from rendering local electric service in the Town of Plymouth, Sheboygan County, except in such portions of the said town as the City of Plymouth shall consent to such operations by the Wisconsin Gas & Electric Company.”

In the circuit court action, after first hearing testimony introduced on behalf of all of the parties, in connection with which the city could have introduced all of the proof which it claims warrants findings upon which it would be entitled to...