Nw. Wis. Elec. Co. v. Pub. Serv. Comm'n

• Decision Date: 22 June 1946
• Citation: 22 N.W.2d 472,248 Wis. 479
• Parties: NORTHWESTERN WISCONSIN ELECTRIC CO. v. PUBLIC SERVICE COMMISSION. SAME v. PUBLIC SERVICE COMMISSION et al.
• Court: Wisconsin Supreme Court

248 Wis. 479

22 N.W.2d 472

NORTHWESTERN WISCONSIN ELECTRIC CO.

v.PUBLIC SERVICE COMMISSION.

SAME

v.PUBLIC SERVICE COMMISSION et al.

Supreme Court of Wisconsin.

April 12, 1946.

Rehearing Denied June 22, 1946.

See 23 N.W.2d 459.

Appeal from a judgment of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Affirmed.

Action was commenced on July 26, 1945, by Northwestern Wisconsin Electric Company. Because of an uncertainty on the part of plaintiff whether a review of an order of the Public Service Commission was governed by sec. 197.06 Stats., as it stood before or after the adoption of chapter 375, Laws of 1943, appellant proceded both ways resulting in two proceedings: one by the Northwestern Wisconsin Electric Company, plaintiff, v. Public Service Commission of Wisconsin, defendant, and the other by the same plaintiff against Public Service Commission of Wisconsin and Village of Centuria, defendants. The two proceedings were consolidated in circuit court. The actions were to review an order by the Public Service Commission and the judgment entered October 26, 1945 affirmed the order sought to be reviewed. The order of the commission granted the Village of Centuria an extension of time of twenty-six days in which such village could make payment of a just compensation fixed by the commission for the electric utility property covered by this acquisition and the performance of the other things required to be done under the original order of the commission dated June 18, 1942. The commission also found that the village had fully complied with its original order by the date fixed in its extension. Plaintiff appeals. The material facts will be stated in the opinion.

Aberg, Bell, Blake & Conrad, of Madison, W. T. Doar, of New Richmond, and E. Nelton, of Balsam Lake, for appellant.

Glenn D. Roberts, Sp. Atty., of Madison, for respondent Village of centuria.

John E. Martin, Atty. Gen., and H. T. Ferguson, Asst. Atty. Gen., for respondent Public Service Commission.

WICKHEM, Justice.

A brief review of the background of this controversy may be of service in understanding the question involved. The facts are not in dispute to any considerable extent. This was a proceeding by the village of Centuria to acquire the electric utility owned by Northwestern Wisconsin Electric Company serving such community. The course of the proceedings was usual down to the point where the order of the commission fixing just compensation and terms and conditions was affirmed by the circuit court for Dane County. On July 25, 1941 the property subject to acquisition had been specified by an order of the Public Service Commission. On June 18, 1942 the commission entered an order fixing all of the other terms and conditions of the acquisition including the amount of compensation and containing the following provision:

‘1. That the Village of Centuria may pay to the Northwestern Wisconsin Electric Company, or to any other person or persons lawfully entitled thereto, within four months from the effective date of this order, the full amount of just compensation as above fixed and determined for the property of said Northwestern Electric Company found to be subject to acquisition by said Village of Centuria in and by the order or determination heretofore made in this proceeding under date of July 25, 1941.’

‘8. That in case any action shall be commenced to vacate or modify this order, then the time of payment of the just compensation as fully fixed in this proceeding shall be extended to a date four months subsequent to the date of final judgment in such action, unless such time of payment shall otherwise be fixed by subsequent order in this proceeding.’

An action was brought by the company to review the order of June 18, 1942 and on September 28, 1944 judgment was entered affirming the order. Notice of entry of this judgment was served on September 29th. No action was taken by the village to comply with any of the terms of the order until after four months from September 28, 1944. On February 15, 1945 the village met, drafted a resolution directing the retaining of special counsel and authorizing such counsel to apply to the commission for an extension of time for the acquisition of the utility property. It adopted an ordinance providing for the financing of the cost of acquisition and one relating to the use of the streets by the power commission transmission lines. On February 23, 1945 the village deposited with the clerk of the circuit court for Polk County the sum of $11,500 together with an undertaking to secure payment of additional sums necessary to complete acquisition. Proof of this deposit was filed with the commission on February 24, 1945 and the commission, noting that the four months' period had expired, conducted a hearing on March 7, 1945. The commission was of the view that the four months' period had expired, but that its jurisdiction did not end with the order fixing the just compensation and the terms or with the rendition of the final judgment approving that order. Upon a subsequent hearing on April 19, 1945 it entered an order extending the time for the village to comply with the terms as fixed in the order of June 18, 1942 to February 23, 1945 upon which date the commission found the village had complied with such terms and conditions. Upon rehearing the commission entered an order on July 17, 1945 affirming the order of April 19, 1945.

Plaintiff's first contention is that the village did not comply with the condition of the acquisition order within the four months fixed by the commission. With this view the commission was in accord. This explains why the commission considered it necessary to extend the time...