Milwaukee & Suburban Transport Corp. v. Public Service Commission

• Decision Date: 08 June 1954
• Citation: 267 Wis. 144,64 N.W.2d 856
• Court: Wisconsin Supreme Court
• Parties: , 6 P.U.R.3d 308 MILWAUKEE & SUBURBAN TRANSPORT CORP. v. PUBLIC SERVICE COMMISSION et al.

Page 856

64 N.W.2d 856

267 Wis. 144, 6 P.U.R.3d 308

MILWAUKEE & SUBURBAN TRANSPORT CORP. v. PUBLIC SERVICE COMMISSION et al.

Supreme Court of Wisconsin.

June 8, 1954.

Petition for review of an order of the Public Service Commission of Wisconsin requiring the Milwaukee and Suburban Transport Corporation to extend its motorbus route No. 65 into the town of Greenfield, Milwaukee County, Wisconsin, on a trial basis. From a judgment affirming the Commission's order, the Transport Corporation appeals.

The facts will be stated in the opinion.

Lines, Spooner & Quarles, Milwaukee, Maxwell H. Herriott and William K. McKibbage, Milwaukee, of counsel, for appellant.

Vernon W. Thomson, Atty. Gen., William E. Torkelson, Chief counsel P. S. C., Madison, for respondent Public Service Commission.

MARTIN, Justice.

On December 30, 1952, appellant acquired title to the Milwaukee metropolitan transportation facilities of The Milwaukee Electric Railway and Transport Company, including motor carrier certificate No. CC-334 for motorbus Route 65, which extends from the central portion of West Allis southwesterly through West Allis to various transfer points of street car and motorbus lines of the appellant.

On October 29, 1952 the Commission found 'That the operation of the proposed extension of Route 65, as amended at the hearing and above set forth, on a trial basis is necessary for reasonably adequate service to the public' and ordered said route extended into the town of Greenfield. The Commission on its own motion reopened the proceeding on December 18, 1952, to investigate a collateral issue and after further hearing affirmed its October order.

Assignment of the authority under the certificate of the predecessor company was made to the appellant on December 15, 1952, and a new certificate, No. CC-761, issued to appellant. On March 9, 1953, appellant was substituted as a party in this proceeding and, after denial of its motion for rehearing, petitioned for review of the Commission's order.

When the matter came on for hearing in the circuit court appellant contended the record must be remanded to the Commission for the reason that it failed to make a finding that the operation of the extension would not impair the earnings of the appellant so as to prevent an adequate and fair return. It was held by the lower court that the order is not fatally defective because no such finding was made.

Service over the route in question is authorized by a certificate issued in accordance with the provisions of ch. 194, Stats. Sec. 194.29 provides:

'Every common motor carrier of property or of passengers shall furnish reasonable, safe and adequate service and facilities.'

This proceeding was instituted for the determination whether such statutory duty required the proposed extension.

The Commission found, on the basis of facts disclosed by surveys made in the area to be served by the extension, that:

'The operation of the proposed extension of Route 65, as amended at the hearing and above set forth, on a trial basis is necessary for reasonably adequate service to the public.'

It found that one additional bus would be required to extend such service and, on evidence presented by the appellant, estimated the total operating expenses would be $15,303 and revenues $2,559 with an annual deficit of $12,744.

Appellant does not challenge the findings made by the Commission and has included none of the testimony in its appendix. Its contention on this appeal is that since the extension of service ordered would produce a net operating loss, it was essential, under the provisions of sec. 193.10, Stats., that the Commission make a formal finding that such extension will not impair the earnings of the corporation so as to prevent an adequate or fair return.

Sec. 193.10, Stats., by its terms is applicable to street railway corporations. The appellant here operates a street railway under a franchise granted under ch. 193 and also operates motorbuses under a certificate of authority under ch. 194. Its operations under such separate authorities are manifestly different in character. The installation and operation of a system of street railways and trackless trolleys require a large capital expenditure while the operation of motorbuses does not.

It would therefore seem reasonable to conclude that their operation and extension of service should be governed by different statutory provisions. Ch. 193 applies especially to street railways and auxiliary vehicles, and sec. 193.10 requires that in ordering an extension of such service the Commission must make a finding of a fair and adequate return to the corporation as well as a finding of convenience and necessity. Under the provisions of ch. 194, however, the Commission need only make the ultimate finding that an extension is...