City of Ashland v. Ashland Water Co.

110 Wis. 94 | Wis. | 1901

Maeshall, J.

This application is ruled against the applicant by State ex rel. Att'y Gen. v. Janesville W. Co. 92 Wis. 496. It was there held, in effect, that permission to commence an action to forfeit a franchise should not be granted on a mere petition stating grounds therefor on information and belief, where it is met by affidavits of persons competent to testify' as witnesses, positively denying the material facts alleged. It was supposed that the decision then rendered would so guide the attorney general in deciding whether to allow the use of his name as relator that applications of the kind before us would not reach this court by his permission without a fair prima facie case being stated in the moving papers, by positive allegations of wrongdoing in the petition or by supporting affidavits of persons competent to testify to the facts stated therein, or by both. "When the legislature lodged power here to say “ upon cause shown ” (sec. 3241, Stats. 1898) when an action may be brought to forfeit a franchise, the intent was that such power should be exercised in each case with all the care requisite to the proper decision of a judicial question. As said in State ex rel. Att'y Gen. v. Janesville W. Co., to merely examine the petition and grant it regardless of op-posing affidavits, because, if all the allegations thereof, whether upon information and belief or upon the knowledge of the petitioner, are true, it states & prima facie case, would be a failure to exercise that sound judicial discretion which the law contemplates, amounting to an abuse of judicial duty. It was foreseen by the legislature, we must assume, that much mischief might be done to public and private interests by the commencement of such actions without any legitimate ground therefor; and the peril in that regard was guarded against as far as practicable by requiring that this court shall be satisfied that a cause for judicial investigation exists, of such moment, as regards public interests, that some appropriate jurisdiction should be set in motion to that end, before the state’s grantee of a franchise, or his assignee, shall be called into court to defend against a charge that he has been guilty of a wilful misuse or abuse thereof. A mere petition, containing complaints on information and belief, especially when opposed by affidavits denying all the alleged wrongdoing, comes far short of satisfying the spirit of the statute. The petition ought in any case to be upon the knowledge of the petitioner, or be supported by affidavits of persons having knowledge of the facts. Such support is indispensable where all the material allegations of the petition are positively denied by the affidavits of persons competent to testify as witnesses to the facts.

It should be understood that the legislative intent, as judicially declared in State ex rel. Att'y Gen. v. Janesville W. Co. and here affirmed, does not call for a preliminary trial of an alleged cause of action to forfeit a franchise, on affidavits, at the time of the application being heard in this court for leave to commence an action for that purpose. It requires, at such time, as a condition of the application being granted, that “ cause be shown ” within the letter and spirit of the statute; that is, that the petitioner shall satisfy the court that he has at hand evidence sufficient, if unopposed, to'justify the forfeiture. If it is true, as alleged, that the Ashland Water Company has for several months been furnishing its customers with water polluted with city sewage and disease germs, no reason is perceived why evidence thereof, in the form of affidavits, was not made a part of the application before us. The moving party, if the leave asked for were granted, could not make it available without proof of facts justifying the forfeiture. "Without such proof being first produced, the water company would not have to accept the challenge of its rights and become an actor in the matter. Why, then, should leave to commence such action be granted, in the absence of any showing that the petitioner is in possession of evidence of the facts alleged, especially in the face of positive evidence that such alleged facts do not exist ? How can a court say in such a situation that cause for the commencement of the action is shown.

It is said in the petition that an opening was made in 1900 in the intake pipe, so that bay water has since that time been pumped directly into the water mains. A' charge of that kind is very serious, in view of the notorious and apparently well-recognized fact that the bay water, before passing through some filtering system, is unwholesome, and the fact that an action instituted in 1895, to forfeit the water company’s franchise, was discontinued upon its installing a satisfactory filtering system and giving satisfactory assurance that the purity of the water would be thereafter maintained. It is easy to make such a charge on information and belief and there not be in existence a scintilla of known evidence to substantiate it. Such a charge should not be made, as a basis for judicial action of the kind requested, before there is competent evidence in hand tending to establish it. If the water company has been guilty'of knowingly pumping polluted bay water into its water mains after securing immunity from a prosecution to forfeit its franchise, by constructing an approved filtering system designed to free from impurities all the bay water distributed to its customers, with the understanding that it should be maintained and operated to accomplish that result, a forfeiture of its franchise would be a light punishment for the offense. But the value of such franchise and the property interests involved should not be imperiled by charges of that nature, recognized by an order, based upon a probability that they may be true, for a judicial investigation, in advance of the procurement of some credible evidence to establish them and the presentation thereof in the form of affidavits to this court, where the allegations in that regard are denied in the manner before indicated. A presentation of this kind, to warrant judicial action favorable thereto, should appear to be made in good faith, show that evidence is obtainable to establish the facts relied upon, that such facts plainly indicate some wilful misuse of the franchise defeating the very design of its creation, that a forfeiture, under the circumstances, will not be inequitable, and that the grievances complained of will be thereby, at least in some substantial degree, remedied. The forfeiture of a franchise is a severe remedy. It is in a civil action what capital punishment is in the criminal law. Courts proceed with great caution in such matters, not regarding a forfeiture justifiable except in a plain case of wilful misuse or abuse of the public privilege going to the very groundwork of the grant, and where no other punishment will adequately remedy the mischief. State ex rel. Prosecuting Att'y v. Commercial Bank, 10 Ohio, 535; High, Extr. Leg. Rem. § 649.

On the record before us the question of whether leave ought to be granted to challenge the right of the water company to continue to exercise the franchise in question is fully covered by the Janesville Case, 92 Wis. 496. On one side are mere charges, on information and belief, easy to make, without any known evidence to support them in a court of justice. On the other is a number of affidavits of'persons competent to testify as witnesses on a trial of the controversy involved. If the unfortunate condition said to exist in the city of Ash-land is, as alleged, traceable to wilful conduct of the water company in distributingdmpure water to its customers, there should be relief as speedy and ample as the judicial power of the state can furnish. But before machinery should be set in motion to oust the water company of its franchise and wind up its affairs, which means confiscation of its property in whole or in part, the prosecutor should be able to show that he is in possession of evidence reasonably sufficient to justify it. If such an investigation shall be entered upon, as a well-grounded suspicion, even, that the allegations of the petition are true demands at the hands of the public authorities of Ashland, and it be prosecuted with the system and skill that should be devoted to a matter of such grave importance, facts can soon be uncovered, if they exist, which, when properly testified to on an application to this court for the use of a proper jurisdiction to forfeit the water franchise, will receive favorable consideration. The present application is clearly insufficient and must be denied.

By the Court.— So ordered.