Wis. Tel. Co. v. R.R. Comm'n of Wis.

• Citation: 162 Wis. 383,156 N.W. 614
• Parties: WISCONSIN TELEPHONE CO. v. RAILROAD COMMISSION OF WISCONSIN ET AL.
• Decision Date: 02 March 1916
• Court: United States State Supreme Court of Wisconsin

162 Wis. 383

156 N.W. 614

WISCONSIN TELEPHONE CO.

v.RAILROAD COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

Feb. 22, 1916.

Dissenting Opinion March 2, 1916.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by the Wisconsin Telephone Company against the Railroad Commission of Wisconsin and others to restrain enforcement of an order of said commission. From a judgment for defendants, plaintiff appeals. Affirmed.

Timlin, J., dissenting in part.

The appellant, Wisconsin Telephone Company, owns and operates and for many years last past has owned and operated a local telephone exchange in the city of La Crosse. It also operates long distance toll lines, which reach most of the populous centers in the state, and it has made contract arrangements for connections with local toll lines where it deemed it advantageous to do so. It is controlled by the American Telephone & Telegraph Company, and has telephone connections which reach out over the United States and Canada and is part of what is commonly known as the “Bell System.” The defendant La Crosse Telephone Company also owns and operates and for many years last past has operated a local telephone exchange in the city of La Crosse. It also owns and operates toll lines in the vicinity of La Crosse and connects with the Tri-State Company over whose lines it is able to reach St. Paul and points beyond. Both companies have connections with three local toll lines, popularly known as the “Teasdale,” “Kneen,” and “Gavney” systems. The plaintiff's exchange in La Crosse is the oldest in point of time. The plant of the La Crosse Telephone Company was installed by residents of the City of La Crosse because there was dissatisfaction with the manner in which the appellant carried on its business.

The long distance service afforded by the Bell Company was nation wide, and in fact international, while that of the La Crosse Company was confined to a restricted area in the vicinity of the city. The Bell Company did not deem it to be for its interest to establish a physical connection with the plant of the La Crosse Company. A local subscriber of that company could not use his phone in talking with any one who had to be reached over the Bell lines, but would have to go to a booth or place where a Bell telephone was installed. It is also claimed that as to one of the local toll lines referred to, some of those served by it could not reach parties served exclusively by the Bell wires. This is denied by counsel for appellant, and we have found it difficult to ascertain from the record just what the fact is. Each of the companies maintained a telephone of the other in its exchange, so that if there was a long distance call over the Bell wires for a subscriber of the La Crosse Company, the central office of that company was advised of that fact by telephone and in turn notified its subscriber. This arrangement and method of doing business was reciprocal.

By chapter 546, § 1797m4, Laws of 1911, physical connection was required to be made between telephone systems whenever the public convenience and necessity required such connection, and it would not result in irreparable injury to the owners or users of these facilities nor in substantial detriment to the service. After the passage of this act the appellant persisted in its refusal to make the physical connection, and Frank Winter, a citizen of La Crosse and a subscriber of the local telephone company, commenced a proceeding before the railroad commission, which was charged with the administration of the statute, to compel the appellant to do its part toward making the connection. The hearing on Mr. Winter's petition resulted in an order directing that the connection asked for be made. The plaintiff brought this action to have this order declared void. The circuit court sustained the commission and dismissed the complaint. Plaintiff appeals.Miller, Mack & Fairchild, of Milwaukee, for appellant.

Frank Winter, of La Crosse, W. C. Owen, Atty. Gen., and Walter Drew, Dep. Atty. Gen., for respondents.

BARNES, J. (after stating the facts as above).

[1] Sections 1 and 2 of chapter 546, Laws of 1911, read as follows:

“Every public utility, and every person, association or corporation having conduits, subways, poles or other equipment on, over or under any street or highway, shall for a reasonable compensation, permit the use of the same by any public utility, whenever public convenience and necessity require such use, and such use will not result in irreparable injury to the owner or other users of such equipment, nor in any substantial detriment to the service to be rendered by such owners or other users, and every utility for the conveyance of telephone messages shall permit a physical connection or connections to be made, and telephone service to be furnished, between any telephone system operated by it, and the telephone toll line operated by another such public utility, or between its toll line and the telephone system of another such public utility, or between its toll line and the toll line of another such public utility, or between its telephone system and the telephone system of another such public utility, whenever public convenience and necessity require such physical connection or connections, and such physical connection or connections will not result in irreparable injury to the owners or other users of the facilities of such public utilities, nor in any substantial detriment to the service to be rendered by such public utilities. The term ‘physical connection,’ as used in this section, shall mean such number of trunk lines or complete wire circuits and connections as may be required to furnish reasonably adequate telephone service between such public utilities.

In case of failure to agree upon such use or the conditions or compensation for such use, or in case of failure to agree upon such physicalconnection or connections, or the terms and conditions upon which the same shall be made, any public utility or any person, association or corporation interested may apply to the commission, and if after investigation the commission shall ascertain that public convenience and necessity require such use or such physical connection or connections, and that * * * such use or such physical connection or connections would not result in irreparable injury to the owner or other users of such equipment or of the facilities of such public utilities, nor in any substantial detriment to the service to be rendered by such owner or such public utilities or other users of such equipment or facilities, it shall by order direct that such use be permitted and prescribe reasonable conditions and compensation for such joint use, and that such physical connection or connections be made, and determine how and within what time such connection or connections shall be made, and by whom the expense of making and maintaining such connection or connections shall be paid.”

The statute involved covers two distinct subjects. The first provision relates to the use by a stranger of conduits, subways, poles, and other equipment located in streets and highways and owned by some other person, firm, or corporation. Under the statute, such use must be permitted where public convenience and necessity require it, and where it will not result in irreparable injury to the owner or other users of the equipment, subject to the condition that a reasonable compensation must be paid for such use.

The second provision relates to the matter of physical connection between telephone exchanges, and differs from the first in one important particular at least, in that it provides for no compensation for the taking or the use of the facilities of one telephone company by another, if any such thing is contemplated. Three conditions must coexist before a physical connection is required: Public necessity and convenience must demand the connection; such connection must not result in irreparable injury to the owners or users of the facilities of the companies that would be affected; and the connection must not result in substantial detriment to the service.

As we read the decision of the railroad commission, it construed the law as not permitting physical connection where it would result in substantial loss to either of the companies involved. This is not said in so many words, but it is a fairly deducible conclusion from the language used. So construed and applied there is at the present day little room for asserting that the legislation is not a legitimate exercise of the police power vested in the Legislature. As facts the commission found: (1) That public convenience and necessity required that the connection be made; (2) that such connection would not result in any substantial detriment to the service of either company; and (3) that such connection could be so made as not to result in irreparable injury or in fact in any injury to either of the utilities involved. The court sustained the order of the commission, but appears to have reached the conclusion that the order was right on a different ground, or at least an additional one, from that on which the commission based its decision. The opinion of the court would indicate that it entertained the view that although a part of plaintiff's property was taken without compensation, and although the application of the statute might result in greatly depreciating the value of its local exchange at La Crosse, still it was a valid exercise of the police power.

The plaintiff argues: (1) That public necessity and convenience did not require a physical connection in this instance, and that the finding to the contrary has no sufficient support in the evidence and is against the testimony offered; (2) that the order will result in irreparable injury to it in at least four particulars: (a) It will practically destroy its local exchange at La Crosse; (b) it will divert toll business to La Crosse, which ...