Commonwealth Tel. Co. v. Pub. Serv. Comm'n

• Decision Date: 03 December 1935
• Citation: 263 N.W. 665,219 Wis. 607
• Parties: COMMONWEALTH TELEPHONE CO. ET AL. v. PUBLIC SERVICE COMMISSION ET AL.
• Court: Wisconsin Supreme Court

219 Wis. 607

263 N.W. 665

COMMONWEALTH TELEPHONE CO. ET AL.

v.PUBLIC SERVICE COMMISSION ET AL.

Supreme Court of Wisconsin.

Dec. 3, 1935.

Appeal from orders of the Circuit Court for Dane County; August C. Hoppmann, Circuit Judge.

Affirmed.

Action by the plaintiffs, Commonwealth Telephone Company, as owner, and Commonwealth Electric Light Company, as lessee and operator of a public utility property at Darlington, to enjoin the defendant, Public Service Commission of Wisconsin, from making an award in proceedings by the city of Darlington to acquire the property, which was being operated under an indeterminate permit. The Public Service Commission demurred on the ground that the complaint does not state facts sufficient to constitute a cause of action. The city of Darlington was permitted to intervene and file an answer, to which the plaintiffs demurred, on the ground that the facts alleged do not state a defense. The court sustained the commission's demurrer to the complaint and overruled the plaintiffs' demurrer to the answer. Plaintiffs appealed from both orders.Schubring, Ryan & Petersen and Ralph E. Axley, all of Madison, for Commonwealth Telephone Co.

James E. Finnegan, Atty. Gen., H. T. Ferguson, Sp. Asst. Atty. Gen., and Alvin C. Reis, Chief Counsel, of Madison, for Public Service Commission and others.

W. K. McDaniel, City Atty., of Darlington (La Follette, Rogers & Roberts and John Ernest Roe, all of Madison, of counsel), for City of Darlington.

FRITZ, Justice.

For the consideration of plaintiffs' contentions on their appeal from the order sustaining the Public Service Commission's (hereinafter called the commission) demurrer to the complaint, and the order overruling the plaintiffs' demurrer to the answer of the city of Darlington (hereinafter called the city), it suffices to note the following matters. Plaintiffs allege in their complaint that the Commonwealth Electric Light Company operates the public utility property involved herein, under an indeterminate permit arising from a franchise originally granted on May 27, 1897, to one of the plaintiffs' predecessors in interest by the city, and which the latter extended on April 22, 1898, to 1913; that on June 24, 1908, pursuant to the provisions of chapter 499, Laws 1907, plaintiffs' predecessor surrendered that franchise and received in lieu thereof an indeterminate permit; and that the plaintiffs succeeded to all the rights of the owner under that permit. They also allege that on February 15, 1935, the city held an election, at which 455 electors voted affirmatively, and 61 in the negative upon a question as to whether the city should acquire plaintiffs' public utility property at Darlington; that no notices of that election were posted in the city, although the statute required written or printed notices to be posted at three public places; and that no publication of the time and place of that election was made in the official paper of the city, until on February 7, 1935, which gave only eight days' previous notice, instead of the ten days required by section 10.36 (3), Stats. Plaintiffs further allege that the city did not secure the verdict of a jury upon the question of necessity for the taking of the plaintiffs' property; but, after the election on February 15, 1935, gave notice of the result thereof to the plaintiffs and the commission, whereupon the latter noticed a hearing for the purpose of fixing the terms, conditions, and compensation to be paid for such taking; that the plaintiffs have not consented to the acquisition of the property by the city, nor waived their constitutional right to the verdict of a jury upon the question of the necessity for such taking; that the commission is wholly without authority or warrant of law to proceed with the hearing to fix compensation; and that it is necessary to enjoin such proceedings in order to prevent great and irreparable injury to the plaintiffs, etc.

The city, in its answer, denied that the election was void; and that the plaintiffs had not waived their right to have the necessity for taking the property established by a jury verdict. In connection therewith, the city alleged that notice of the time and place of the election was given by the publication of an official notice in the official paper of the city on February 14, well as on February 7, 1935; that notice thereof was also published and circulated on February 6, 1935, and February 13, 1935, in the Republican Journal, a weekly newspaper of general circulation in the city, which also carried, on the latter date, a front-page notice in larger type than ordinary news print, requesting the electors to vote in order to help the mayor and city council secure lower electric light rates; that on February 13, 1935, there was distributed from house to house, in the city, a leaflet directed to the voters and asking them to vote “yes” on February 15th in order to assist the mayor and city council to secure lower electric light rates; that, between 6 and 8 o'clock, on the morning of the election, there were likewise distributed in the city, 635 copies of “The Buyer's Bulletin,” a circular, in which the voters were asked to assist the mayor and city council in their effort to secure lower electric light rates; that on December 21, 1934, there had also been an election upon the question of whether the city should purchase the property (which was erroneously described as belonging to the Commonwealth Electric Company, instead of also naming the Commonwealth Telephone Company), and that the result then was 523 votes in favor, and 79 votes against, the purchase; that notices stating the time and place of that election, as well as the statutory “information to voters,” and a sample referendum ballot were duly published on December 6, 13, and 20, 1934, in the official city paper; and that on January 31, 1935, there was also published in the official city paper a news item under the heading, “City will Hold Another Special Election.”

[1] Plaintiffs contend that the special election held on February 15, 1935, by which the city intended to initiate proceedings before the commission, was void because of the city's failure to give 10 days' previous notice thereof by publication in the official city paper, and by posting written or printed notices in three public places in the city, in compliance with sections 10.40 and 10.36 (3), Stats. That contention cannot be sustained in view of the saving provisions in the latter section, and in section 5.01 (6), Stats., as construed and applied in State ex rel. Oaks v. Brown, 211 Wis. 571, 249 N.W. 50, 52, and the facts and circumstances alleged regarding the publicity which was actually given to the election to be held on February 15, 1935. It is true that because of the provision in section 10.40 (1), Stats., that “Special elections authorized by law shall be held and conducted and the returns thereof made in the manner and within the time required in the case of regular municipal elections,” the special election in question should have been held and conducted in the manner, and within the time prescribed by section 10.36, Stats., for regular municipal elections. However, although subdivision (3) of that section prescribes that “Ten days' previous notice of the time and place of such election and of the officers to be elected shall be given by the city clerk by publication in the official city paper and by posting written or printed notices in three public places in the city,” that provision is qualified by the words, “but the failure to give such notice shall not invalidate such election.” Furthermore, there is applicable the provision in section 5.01 (6), Stats., that, “This title [which, as was held in State ex rel. Oaks v. Brown, supra, includes Chapter 10, as well as Chapter 5 and all other provisions in Title II of the Statutes] shall be construed so as to give effect to the will of the electors, if that can be ascertained from the proceedings, notwithstanding informality or failure to comply with some of its provisions.”

In State ex rel. Oaks v. Brown, supra, both of those saving provisions were held applicable to a special election in the city of Oshkosh, as to which there had likewise been a failure by the city clerk to give ten days' previous notice in compliance with section 10.36 (3), Stats. But on the seventh, and also the last day before the election, notice thereof was given by the publication of a facsimile ballot in the official city paper in compliance with section 6.21, Stats. That section prescribes that before holding an election at which a question is to be submitted, publication of a facsimile of the official ballot and certain other information shall be made twice in daily or weekly newspapers, “one of which publications in daily papers shall be on the publication day preceding the election and the other publication one week previously.” The relator contended that the notice which was published, although the first publication thereof was only eight days prior to the date of the election, should be held sufficient, and that the failure to give ten days' previous notice as required by section 10.36 (3), Stats., should not be held to invalidate the election, in view of the provision in that section that “the failure to give such notice shall not invalidate such election.” This court, in sustaining those contentions, said: “We should have great difficulty in sustaining the relator's contention if we were required to determine this question upon general principles of law as declared in prior decisions of this Court. Janesville Water Co. v. City of Janesville, 156 Wis. 655, 146 N.W. 784;Hubbard v. Town of Williamstown, 61 Wis. 397, 21 N.W. 295;State ex rel. City of Manitowoc v. Green, 131 Wis. 324, 111 N.W. 519.” Then, after concluding that the strict rule applied in the Janesville Water Co. Case and other earlier cases had been modified, in 1915, by section 5.01 (6), Stats., in...