Highland Dairy Farms Co. v. Helvetia Milk Condensing Co.

• Decision Date: 07 June 1923
• Docket Number: No. 15219.,15219.
• Citation: 308 Ill. 294,139 N.E. 418
• Parties: HIGHLAND DAIRY FARMS CO. v. HELVETIA MILK CONDENSING CO. et al.
• Court: Illinois Supreme Court

308 Ill. 294

139 N.E. 418

HIGHLAND DAIRY FARMS CO.

v.HELVETIA MILK CONDENSING CO. et al.

No. 15219.

Supreme Court of Illinois.

April 18, 1923.

Rehearing Denied June 7, 1923.

Complaint by the Highland Dairy Farms Company against the Helvetia Milk Condensing Company and another. Judgment for defendants before the commerce commission was affirmed on appeal to the circuit court, and complainant appeals.

Affirmed.

Cartwright, J., dissenting.

Appeal from Circuit Court, Madison County; Louis Bernreuter, judge.

Terry, Gueltig & Powell, of Edwardsville, for appellant.

J. P. Streuber, of Edwardsville, for appellees.

CARTER, J.

A complaint was filed by the Highland Dairy Farms Company against appellees, the Helvetia Milk Condensing Company and the Highland Brewing Company, upon the ground that they had refused to grant appellant water wervice, charging that the appellee companies were jointly engaged in furnishing water as a public utility, and as such were subject to the provisions of an act to provide for the regulation of public utilities, and praying for such relief as the commerce commission could give. On the hearing before the commission it was decided that appellees were private corporations, organized and operated for the purposes provided in their respective charters, and were not operating a public utility, and therefore were not subject to the jurisdiction of the commission, and the complaint was dismissed. A petition for rehearing before the commission was denied. An appeal was taken to the circuit court of Madison county, where the judgment of the commission was affirmed. This further appeal was prosecuted from the judgment of the circuit court.

It appears from the record that appellant is an unincorporated association, or, as one of the witnesses testified, a common-law corporation, engaged in distributing milk and by-products. Appellee the Helvetia Milk Condensing Company is a corporation formed for the purpose of ‘dealing in milk, manufacturing and selling milk products, and to purchase, acquire, and hold such personal property and such real estate as may be deemed necessary for the successful prosecution of its business, and the power to sell and convey such property.’ Appellee the Highland Brewing Company is incorporated ‘to make and to deal in beer kegs, barrels, casks, and other cooperage used or useful in a brewery, and to make and to deal in malt, beer, and ice.’ The charters of appellees were offered in evidence. The hearing before the commission was held July 18, 1922, and it was decided that appellees had not held themselves out as engaged in furnishing the public a supply of water.

The record shows that the securing of water for the operation of certain businesses and industries in the city of Highland had been for several years before this hearing attended with difficulty; that the appellees, because of the difficulty in obtaining a proper water supply for their work, entered into a contract several years ago with one another under which they prospected for water, sharing the expense equally, and agreeing on an equal division of water if a supply were obtained. Various sources of water were investigated by appellees by sinking holes, building dams, piping from a nearby creek, and impounding spring water, and a large concrete reservoir was constructed about a mile and a half northwest of the city of Highland, and the water was piped by gravity to appellees' plants in the city. The record shows that outside of the limits of Highland these pipes were laid in a public road, and that the pipes were laid in the city along certain streets. There is testimony in the record that the right to lay these pipes in the city was by mutual agreement between the city authorities and appellees, with the understanding that for the purpose of fire protection a few tees should be placed in the pipes at different places on two or three streets. There was, however, no written record as to such an understanding between the city and appellees.

The evidence shows that the city of Highland at the time of this hearing had a population of about 3,200; that about 16 persons or concerns were permitted to connect their premises with the pipes of appellees for their private use, but that other persons and con cerns were denied the privilege by appellees. The evidence also shows that there had never been any public attempt or effort made by appellees to procure patrons for water to be supplied through appellees' pipes, and the evidence tends to show that applicants for such water supply were for the most part discouraged by appellees in applying for such connections. In one or two instances, where some mutual advantage appeared, the connection with the pipes and use of water were permitted, as in the case of the Pennsylvania Railroad, which is the only railroad through that district. It was testified that this railroad company applied for the privilege of supplying its trains with water, but it was at first refused, and was only permitted the use of the water when it informed the appellees that, unless it was supplied, it would refuse to handle appellees' freight. It also appears that certain connections were made with residences; some being those occupied by relatives of officers of appellees. Among the business concerns supplied with water were a pipe organ factory located near one of appellees' plants; also two hotels, a garage, a battery service station, a general store, a bank, a lodge hall, and a newspaper office.

As heretofore stated, the evidence shows that other concerns and residents applied for, but were denied, connection with the water service. Bills were rendered to the consumers of water, but not always at a uniform rate. The evidence shows that, when a representative of appellant applied to an officer of one of appellees concerning appellant being supplied with water, that officer told the inquirer that he thought they could supply it, but later the representative was informed that the other appellee refused to entertain the offer, and appellant was denied the connection. It appears also in the testimony of one of the witnesses that the presidentof the brewing company told the president of appellant at one time, and another witness at another time, that appellees had sufficient water for all who applied, but that the milk company would not consent to furnishing it. No witness testified to a knowledge of how much water gathered in the reservoir daily, and there is no testimony, based on any facts in support thereof, to the effect that there was enough water for all who might apply in the city of Highland; but there were opinions given that there would not be sufficient water for all the residents of the city. It is clear from the evidence that the water pipes and mains for conveying water had not been constructed so as to afford universal connections to the inhabitants of said city; that the pipes were run through the city largely as a matter of convenience for the appellees, except that a few tees were put in for fire protection. As already stated, the record does not show whether the tees were put in because required by the city officials, or simply as a voluntary favor, the same as when certain individuals were allowed connections for water with the pipes of appellees. We think the weight of the evidence shows that the water plant was constructed for private use, and fails to show that appellees held themselves out as an agency or business for supplying the public with water.

On the petition for a rehearing before the commerce commission an attempt was made to have the case reheard on the ground of newly discovered evidence, which it was stated would show that appellees had promised to undertake to supply the inhabitants of the city, or all who applied, with water, and that, when another company was attempting to procure a franchise for the purpose of furnishing water, appellees objected on the ground that they could furnish all the water needed for the city of Highland, and that thereupon the city officials refused to grant the privilege to the company applying for the franchise. It is also alleged in the petition for rehearing that the connections with the pipes of appellees had been increased since the former hearing from 16 to 25. It also appears from the petition for rehearing that many of the inhabitants of the city are supplied with water through wells and cisterns, and that not over 5 per cent. of the inhabitants would become water consumers, and that the supply of water now obtained by appellees would be adequate to take care of all who applied. The commission refused to grant the rehearing and furnish an opportunity for the introduction of this evidence.

It is contended by appellant that by actually supplying water to those who applied, as shown by the record, appellees have become a public utility, even though they have never attempted, so far as the record shows, to comply with the...