Town of Beloit v. Public Service Commission

• Decision Date: 28 February 1967
• Parties: TOWN OF BELOIT et al., Appellants, v. PUBLIC SERVICE COMM. of Wisconsin et al., Respondents.
• Court: Wisconsin Supreme Court

Page 661

148 N.W.2d 661

34 Wis.2d 145

TOWN OF BELOIT et al., Appellants, v. PUBLIC SERVICE COMM. of Wisconsin et al., Respondents.

Supreme Court of Wisconsin.

Feb. 28, 1967.

Garrigan, Keithley, O'Neal, Dobson & Elliott, Beloit, for appellants.

Bronson C. La Follette, Atty. Gen., William E. Torkelson, Chief Counsel, P.S.C. Peterson, Sutherland, Axley & Brynelson, Madison, for respondents.

HANLEY, Justice.

The principal issue in this case is whether or not the utility company held itself out to the public or assumed any obligation to serve the public in the area referred to as the district.

It is a fundamental principle of law that a public utility is required to serve only within the scope of its undertaking or profession of service. Weyauwega Telephone Co. v. Public Service Comm. (1961), 14 Wis.2d 536, 541, 111 N.W.2d 559.

In City of Milwaukee v. Public Service Comm. (1954), 268 Wis. 116, 120, 66 N.W.2d 716, 718, this court stated:

'Every public utility has the obligation, within the scope of its undertaking, to furnish its service to all who reasonably require it. * * *'

The obligation referred to in the above case and the enforcement thereof apply only to the area or scope of the undertaking or profession of the utility to serve.

The law is equally clear that it would be a violation of due process contrary to the Fourteenth Amendment of the United States constitution to compel a public utility to serve beyond its profession of service.

The United States supreme court in Interstate Commerce Comm. v. Oregon-Washington R. & N. Co. (1933), 288 U.S. 14, 39, 41, 53 S.Ct. 266, 273, 274, 77 L.Ed. 588, said:

'* * * Those decisions show that due process is denied by requiring service which goes beyond the undertaking of the carrier. * * *

'* * *

'* * * State courts have uniformly held that to require extension of existing lines beyond the scope of the carrier's commitment to the public service is a taking of property in violation of the Federal Constitution. The decisions of this court will be searched in vain for the announcement of any principle of constitutional interpretation which would support the order of the Commission. * * *'

Oklahoma Packing Co. v. Oklahoma G. & E. Co. (10th Cir. 1938), 100 F.2d 770; Phillips Petroleum Co. v. Corporation Comm. (Okl., 1956), 312 P.2d 916, 918; and Utah Power & Light Co. v. Public Service Comm. (1952), 122 Utah 284, 249 P.2d 951, 952.

We must determine the scope of the undertaking of the utility since it must be conceded that the utility can profess service in a number of ways. The determination may be aided by contracts, maps, tariffs filed with state agencies or from the conduct and practices of the utility with or without regard to existing maps. The question to be determined is one of fact. Milwaukee v. Public Service Comm., supra.

The Public Service Commission here has made that finding of fact, and its finding has been reviewed by the circuit court and affirmed.

Pursuant to sec. 227.20(1)(d), Stats., the circuit court has the power to review, but not to reverse, if there is substantial evidence in view of the entire record which supports the Commission's findings.

The utility serves water to the city of Beloit under an indeterminate permit. It serves water in the town of Beloit to the north of the city limits in the area embraced within its undertaking or profession to serve as filed with the Public Service Commission. All mains are within this area. The district requesting service is 1,100 feet from the limits of the undertaking. The elevation of the district is twenty feet above the elevation of the nearest main. Service to the area would require a ten inch water main extension and the construction of a booster station.

The fact that the undertaking extends on the east side of the river approximately 11,000 feet from the city limits, whereas the undertaking on the west side of the river extends only approximately 3,500 feet from the city limits, does not support a contention that the undertaking exists at the district. Once a utility has filed a map, neither distance nor a listing of other areas being served has any validity as a test for determining whether or not a utility has held itself out to serve an area.

The fact that a utility has extended service a certain distance in one direction does not mean it must serve an equal distance in all directions.

The filing of a map and the consistent functioning within the confines of such map by a utility seemingly would foreclose any contrary arguments in regard to an obligation to serve other areas.

Counsel for the district argues that the utility has not consistently adhered to the professed boundaries and cites the departure made in the service rendered to Turner high school.

This court, in Wisconsin Gas & Electric Co. v....