Janesville Water Co. v. City of Janesville

• Decision Date: 09 April 1914
• Citation: 146 N.W. 784,156 Wis. 655
• Parties: JANESVILLE WATER CO. v. CITY OF JANESVILLE ET AL.
• Court: Wisconsin Supreme Court

156 Wis. 655

146 N.W. 784

JANESVILLE WATER CO.

v.CITY OF JANESVILLE ET AL.

Supreme Court of Wisconsin.

April 9, 1914.

Appeal from Circuit Court, Rock County; George Grimm, Judge.

Suit by the Janesville Water Company against the City of Janesville and others. From an order dissolving a temporary injunction, plaintiff appeals. Reversed and remanded for further proceedings.

Plaintiff began a suit in equity to restrain the defendants from prosecuting a proceeding pending before the Railroad Commission of Wisconsin for the valuation of plaintiff's waterworks under the public utility law of this state and for a purchase by the defendant city of said waterworks. A temporary injunction was secured from a court commissioner, which the circuit court for Rock county dissolved after a hearing before it. This is an appeal by plaintiff from the order dissolving the temporary injunction.Jeffris, Monat, Oestreich & Avery, of Janesville, for appellant.

W. H. Dougherty, City Atty., of Janesville, for respondents.

VINJE, J.

At the election held in the city of Janesville April 2, 1912, there was submitted to the voters, pursuant to directions of the common council, the question: Shall the city of Janesville purchase the Janesville Water Company? The total number of votes cast upon the subject was 2,279, of which 1,238 were cast for, and 1,041 against, the question; the majority in favor of purchase being 197.

[1] Claim is made that the question was so worded as to mislead the voters. It is true the question is inapt, and does not accurately express the matter intended to be submitted, namely, Shall the city of Janesville purchase the plant or waterworks system of the Janesville Water Company, but in our judgment no voter was misled by the form of the question. Every voter must have understood that it was the purchase of the plant or physical property of the Janesville Water Company that was intended, and not the purchase of the corporation mentioned. Janes v. Racine, 143 N. W. 707;State ex rel. Elliott v. Kelly, 154 Wis. 482, 143 N. W. 153.

[2] The first official notice that such a question would be submitted to the voters was published on Sunday, March 24th, nine days before the election. It is claimed by plaintiff that the notice was insufficient. Section 1797m80, inferentially at least, provides that the electors of a municipality may, at a general or special election, vote upon the question of the acquisition of a public utility. It makes no provision for giving notice of such election. But section 926--31, St. 1911, provides that when any question is to be submitted to the voters of any city or village the common council of such city or the village board of such village shall issue a call for such election in accordance with the law authorizing such submission. Unless otherwise provided by such law, notice of such election shall be given, and the election shall be held and conducted, by the inspectors and clerks of election in the same manner, and the return thereof shall be made in the same form and manner, as in the case of general municipal elections. Since the general public utility law makes no provision for giving notice of election, such notice must, under section 926--31, be given as required for a general municipal election in Janesville. Section 1 of chapter 2 of the charter of that city requires 10 days' notice to be given for a general municipal election therein. So 10 days was the notice required for the submission of the question voted upon. Assuming that the first publication on Sunday was valid, it would still leave the notice insufficient.

[3] The question arises, Does such insufficiency of the election notice invalidate the vote cast? Many cases are called to our attention, to the effect that a failure to give the full statutory election notice does not invalidate the election, and, among others, State ex rel. Peacock v. Orvis, 20 Wis. 236;State ex rel. Lutfring v. Goetze, 22 Wis. 364, and State ex rel. Chase v. McKinney, 25 Wis. 416, in which the court held that, as to filling offices at a general election, an insufficiency of the election notice would not invalidate the votes cast where it appeared that the voters had an opportunity to cast their ballots, because the time of holding general elections is fixed by law, and it is generally known that offices are to be filled by vote at such elections.

[4] In the last case mentioned, the election was declared void because it was not generally known that a vacancy was to be filled. But decisions as to the validity of general elections, especially where challenged by one who participated therein, are of little value in determining the precise question before us. It is undoubtedly the rule in this state, as well as in most states, that a vote to fill offices at general elections is not invalidated by an insufficient election notice, where it appears that the electors, by reason of the existence of general laws, knew of the election and of the offices to be filled in time to enable them to express their choice. Such a rule cannot be applied to special elections, or to special questions submitted at a general election, for there is no presumption that the voters knew anything about either; there being no general law to apprise them of the fact.

Moreover, so far as the question here considered is concerned, it is not enough to show that the electors knew that a vote was to be taken upon it in time to go to the polls and cast their ballots. The question, in order to be voted upon intelligently and understandingly, required the collection and consideration of many important data and facts concerning the advisability of the city...