Wis. Pub. Serv. Corp. v. Pub. Serv. Comm'n

• Citation: 230 Wis. 663,284 N.W. 582
• Parties: WISCONSIN PUBLIC SERVICE CORPORATION v. PUBLIC SERVICE COMMISSION.
• Decision Date: 07 March 1939
• Court: Wisconsin Supreme Court

230 Wis. 663

284 N.W. 582

WISCONSIN PUBLIC SERVICE CORPORATION

v.PUBLIC SERVICE COMMISSION.

Supreme Court of Wisconsin.

March 7, 1939.

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

Affirmed.

Action begun May 26, 1936, by the Wisconsin Public Service Corporation against the Public Service Commission of Wisconsin, to vacate and set aside certain orders of the commission made and entered in the course of proceedings for the acquisition of utility property by the city of Waupaca. The commission's orders, dated September 5, 1935, and April 2, 1936, determined that the city of Waupaca had power to acquire the property of the plaintiff without a jury verdict establishing the necessity for the taking. They also determined the terms upon which the city might obtain title to the utility property. From a judgment vacating and setting aside these orders on the grounds that a jury verdict was necessary, the commission appeals.

The Wisconsin Public Service Corporation owns and operates in the city of Waupaca an electric utility which was formerly operated by the Waupaca Electric Light Association, which held franchises granted by the city of Waupaca. These franchises consisted of an electric utility franchise granted October 2, 1894, for a term of twenty years, and a street railway franchise granted April 2, 1898, for a term of fifty years.

On December 12, 1910, the Waupaca Electric Light & Railway Company voted to surrender its franchise in order to obtain an indeterminate permit as provided in ch. 499, Laws of 1907, and ch. 180, Laws of 1909. Ch. 499, Laws of 1907, created the public utilities law and in secs. 1797m-77 and 1797m-78 provided that utilities operating under franchises might obtain indeterminate permits by surrendering their franchises and by consenting that the municipality in which they were located might acquire their property without a jury verdict establishing the necessity for the taking. Ch. 180, Laws of 1909, extended the time for consent and surrender to January 1, 1911. On December 28, 1910, the Waupaca Electric Light & Railway Company filed a surrender specifying only the street railway franchise. On January 9, 1911, the company filed an amended surrender notice, stating that it had intended to surrender the electric utility franchise. The city clerk attached to this instrument a note indicating that it was offered for filing after the expiration date.

On April 3, 1934, the city of Waupaca held a referendum election and by a majority vote determined to acquire the electric utility property. No action was commenced to obtain a jury verdict establishing the necessity for the taking. The commission entertained proceedings to determine the terms upon which the city might acquire the property of the utility, and issued the orders mentioned above, expressing the opinion that a jury verdict was unnecessary because of the surrender filed by the Waupaca Electric Light & Railway Company as amended on January 9, 1911. The circuitcourt was of a contrary opinion and set aside the orders of the commission.

John E. Martin, Atty. Gen., Harold H. Persons and H. T. Ferguson, Asst. Attys. Gen., and Edward J. Hart, City Atty., of Waupaca, for appellant.

Miller, Mack & Fairchild and Bert Vandervelde, all of Milwaukee, for respondent.

FAIRCHILD, Justice.

The constitution of this state, sec. 2, art. 11, provides that no municipal corporation shall take private property for public use, against the consent of the owner, without the necessity thereof being first established by the verdict of a jury. In the present case no such verdict was found by a jury before the city of Waupaca commenced proceedings for the acquisition of electric utility property in that city, and the single issue upon this appeal is whether the utility corporation may be held to have so consented to the taking of its property as to make the jury verdict unnecessary.

When the utility law was first enacted by the legislature of 1907, many utilities were operating under municipal franchises. It was thought that regulation would be more effective if all utilities could be induced to operate under indeterminate permits of the kind created by that law. Uniformity would result and the utilities would benefit because they would be relieved of the necessity of appealing to local boards for extension of their franchises and for renewals when they expired. Accordingly, ch. 499, Laws of 1907, created sec. 1797m-76 of the statutes, which provided that every license, permit or franchise thereafter granted should have the effect of an indeterminate permit. Because of this provision, every license, permit or franchise granted after the law of 1907 went into effect is to be regarded as an indeterminate permit, granted upon the condition that the utility consent to permit the municipality to acquire its property at a price to be fixed by the commission.

The legislature evidently expected that existing utilities would exchange their franchises for indeterminate permits, because in secs. 1797m-77 and 1797m-78 created by the act of 1907 the legislature provided a procedure for the making of such exchanges and limited the time within which they could be made to July 1, 1908. By ch. 180, Laws of 1909, the time for obtaining indeterminate permits by exchange was extended to January 1, 1911. But a condition of the surrender and exchange was consent to acquisition, and some of the utilities did not respond to the legislative invitation.

In July, 1911, the legislature enacted ch. 596, Laws of 1911, with the evident purpose of completing the standardization of utility permits, La Crosse v. La Crosse Gas & Electric Co., 1911, 145 Wis. 408, 421, 130 N.W. 530;South Shore Utility Co. v. Railroad Comm., 1932, 207 Wis. 95, 103, 240 N.W. 784. As noted above, sec. 1797m-77, created by the act of 1907, provided for the voluntary surrender of franchises. Ch. 596, Laws of 1911, amended that section. As amended, it constitutes sec. 196.55 of the present statutes. Sec. 196.55 provides that every license, permit or franchise granted prior to July 11, 1907, by the state or by a municipality, is so altered and amended as to constitute and be an indeterminate permit as defined in other sections of the law, except as provided by sec. 197.02, Stats. Sec. 197.02 provides that if a municipality shall determine to acquire a plant operated under an indeterminate permit as provided in sec. 196.55, such municipality shall bring an action in the circuit court against the utility for an adjudication as to the necessity of such taking by the municipality, and that unless the parties waive a jury, the question of necessity shall be submitted to a jury. It is evident that the legislature had in mind the requirement of sec. 2, art. 11 of the constitution when it made this provision for jury trial.

After enactment...