Wis. Gas & Elec. Co. v. R.R. Comm'n of Wis.
| Citation | 222 N.W. 783,198 Wis. 13 |
| Court | United States State Supreme Court of Wisconsin |
| Decision Date | 08 January 1929 |
| Parties | WISCONSIN GAS & ELECTRIC CO. v. RAILROAD COMMISSION OF WISCONSIN ET AL. |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Dane County; August C. Hoppmann, Judge.
Action by the Wisconsin Gas & Electric Company against the Railroad Commission of Wisconsin and another. From a judgment setting aside an order of the Commission, defendants appeal. Affirmed.--[By Editorial Staff.]
Public utility service. The city of Plymouth having informally complained to the railroad commission that the Wisconsin Gas & Electric Company had extended its lines in the town of Plymouth, Sheboygan county, contrary to the provisions of chapter 196, Wis. Stats., the commission upon its own motion ordered a hearing, which was held February 23, 1928. The commission made an order consisting in part of findings of fact, recitals, argument, and recommendation that the city and the plaintiff company agree upon a division of service in sections 5 and 6 in the town of Plymouth, and ordered “that the Wisconsin Gas & Electric Company cease and desist from rendering local electric service in the town of Plymouth, Sheboygan county, except in such portions of the said town as the city of Plymouth shall consent to such operation by the Wisconsin Gas & Electric Company.” The order was dated April 6, 1928.
The plaintiff promptly brought this action in the circuit court for Dane county to review the order of the commission. The city and the commission answered; there was a trial before the court; the court filed a decision making no formal findings of fact, embodying some argumentative matter, citation of authorities, and found in effect that the plaintiff and its predecessors in title were in fact first established as public utilities within the town of Plymouth and first rendered public utility service within that town, and concluded:
“The plaintiff's predecessors have had an indeterminate permit in the town of Plymouth since the passage of chapter 596, Laws of 1911. This indeterminate permit has never been set aside, vacated or questioned, nor has the right of the plaintiff to operate thereunder been questioned.
The legal existence and operation of the defendant city of Plymouth as a public utility in its proprietary capacity in the town of Plymouth is not necessary for determination and no relief is prayed for by the plaintiff against the city acting in that capacity. The prayer is to set aside and vacate the alleged unlawful order of the defendant commission.
It is the opinion of this court that the said order of the commission is unlawful, unreasonable, and unjust.
The order is hereby set aside and vacated as for naught.”
Pursuant to the decision of the court a formal judgment was entered vacating and setting aside the order of the railroad commission, dated April 6, 1928, and from that judgment the defendants appeal.John W. Reynolds, Atty. Gen., Suel O. Arnold, Asst. Atty. Gen., and Geo. L. Mooney, of Plymouth, for appellants.
Shaw, Muskat & Sullivan, of Milwaukee, for respondent.
Many questions are presented and pressed here in briefs of counsel and upon the oral argument which we find it unnecessary to consider in this case. As pointed out in the decision of the trial court, the sole question at issue here is the validity of the order of the railroad commission ousting the plaintiff company from the town of Plymouth so far as local service is concerned. It will not be necessary to determine what the rights of the defendant city are because whatever they are they are in no way drawn in question in this case.
The facts as found by the trial court and that appear from the record to be practically undisputed are: The city of Plymouth purchased in 1901 from one Wheeler, then the owner, its present water and light plant, and has ever since that time owned and operated it. At the time of the purchase in 1901 the utility was furnishing electric light service to one Eastman over a line built to his home, about 35 feet of the line being beyond the city limits of the city of Plymouth. From 1901 to 1917 t...
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