5 N.W.2d 800 | Wis. | 1942
This action was commenced on March 6, 1941, by the city of Milwaukee, plaintiff, against the Public Service Commission and town of Milwaukee, defendants, to review an order of the Public Service Commission. The action was tried by the court and judgment entered on February 3, 1942, dismissing plaintiff's action. Plaintiff appeals. The material facts will be stated in the opinion. By order of the Public Service Commission, plaintiff city of Milwaukee was required to extend its water service in the town of Milwaukee to certain described premises in the town. Plaintiff, (1) denies the jurisdiction of the Public Service Commission to compel the extension; (2) assuming jurisdiction in the commission, objects to the reasonableness of the order upon the grounds that the costs and difficulty of furnishing service is out of proportion to the needs for service involved; and (3) contends that the rate ordered will occasion loss to the plaintiff and constitute a burden upon its customers. The following are the facts necessary to an understanding of the controversy:
The city of Milwaukee operates a waterworks utility. By contract with the town of Milwaukee it had extended service to residents of the town residing in certain streets in a limited area. This was in the vicinity of Green Bay avenue. Under the terms of this contract, the town of Milwaukee laid mains at its own cost to the Milwaukee city limits, and connected with the Green Bay avenue feeder main. This contract expressly prohibited the town from extending its main to any other streets than those described in the contract, or to sell or to deliver water to any other individual or property. The town of Milwaukee also received some water from the city of Milwaukee utility as a result of a contract with the village of Fox Point. The village of Fox Point takes water from the Milwaukee utility, and in order to get the water constructed a main along the Port Washington road in the town of Milwaukee to connect with the Milwaukee main at Hampton avenue. As a part of its easement agreement with the town of Milwaukee, residents of the town abutting the Port Washington road were permitted to obtain water from the main *252 for domestic uses only. The city of Milwaukee consented to this use and the contract restricted the town to one-inch mains and four fire hydrants. The point at which the Fox Point pipe connects with the Milwaukee main is the intersection of Hampton avenue and Port Washington road. The Milwaukee main runs from this point east for half a dozen blocks to Santa Monica avenue where it connects with a main running north from East Capitol drive extending along Santa Monica avenue the full length of the village of White Fish Bay and serving that village. The area seeking service in this case is a small triangular tract beginning on the east side of the Port Washington road, a short distance north of Hampton avenue, extending north to West Marne avenue, thence southeasterly to North Second street, thence south, to a point slightly north of Hampton avenue. This is a real-estate subdivision, and the impetus to get water comes from the desire of the promoters for the advantages of city water. The tract is twenty-nine acres in extent, appears to cover four platted blocks, and has upon it thirty-three homes and one hundred one vacant lots. The estimated population will be five hundred forty-nine people when fully built up. One of the city's objections to serving this area, which presently is getting its water from private wells, is that the pressure on the Santa Monica, Hampton, Fox Point line is not enough to take care of any more customers in the town of Milwaukee, and that as a result a ten-inch main off the Green Bay road running east to Hampton avenue would have to be built or a main which runs for a couple of blocks on the Port Washington road north from East Capitol drive would have to be extended north to the intersection of the Port Washington road and Hampton avenue. The construction of either main would require the expenditure of from thirty to forty thousand dollars, and the mains when so constructed would be of considerably greater capacity than necessary or proper to serve the area presently requesting water. It is claimed that *253 to require the expenditure would be unreasonably burdensome upon plaintiff; that at present rates, plaintiff could not possibly earn on this investment; that the number of people demanding service is so small and the prospects of their increasing so slight that this service cannot be furnished economically and would have to be recompensed for by rates much above those charged currently by the plaintiff.
Plaintiff assumes that the question is whether the Public Service Commission has jurisdiction to compel a municipally owned waterworks utility to extend its service into an adjoining township and render water service in a new area. The question is narrower than this. It is whether a municipal utility which, by contract with an adjoining town, has assumed to serve small, isolated, and precisely limited portions of a town, has become a utility throughout that entire town, and bound to extend its service in response to orders of the Public Service Commission. In Pabst Corp. v. Milwaukee,
The case of the town of Milwaukee is quite different. Here, to paraphrase the language of Wisconsin Gas E. Co. v.Railroad Comm.
Much reliance is put upon the resolution of the city council of Milwaukee enacted on June 20, 1927. This resolution recited in substance that since it was necessary for the city to terminate contracts for water existing between the city and West Allis, North Milwaukee, and the village of Shorewood, that whereas the purpose of the resolution had been misunderstood by outlying municipalities, and whereas there are in existence certain physical connections between the Milwaukee utility and the public utilities of the outlying cities, and whereas a bill is pending in the legislature to create a metropolitan water district outside the city of Milwaukee largely because of the cancellation of the contracts, and whereas there has been a conference and agreement between the representatives of the city provided the city evidences *256
willingness to furnish water to the outlying utilities of the villages, towns, and cities named, it is resolved that the city of Milwaukee express its willingness to these municipalities to furnish them provided a rate is kept in existence by the railroad commission of Wisconsin. It was further resolved that the city of Milwaukee supply water to town territories in the future as in the past by extending service as soon as owners of such territory shall declare their intention by signing petitions for annexation when presented; that the council will, however, give serious consideration to any application of any town for water if proper plans are presented, and may in its judgment furnish water to towns upon the merits of each case. The general purpose of the resolution was doubtless to allay the fears of outlying communities and to induce them to drop support in the legislature of a bill to create a metropolitan water district. The city carefully circumscribed its promises by stating that it would extend service in towns to portions of the town that had evidenced an intention to become annexed to the city, or in individual cases, according to the merits of the case. This is pretty thin support for a holding that Milwaukee has anywhere or at any time evidenced an intention to extend into towns as a whole. The situation in towns is quite different from that in cities and villages. It is held in South Shore Utility Co. v.Railroad Comm.
That is the situation here. The city is in no position to keep another water utility out of the town, upon any claim that it has an indeterminate franchise there. Neither has it the duty to extend its service in the town beyond the limits of the holding out evidenced by its contract, and since the holding out is not coextensive with the limits of the town, it cannot be treated as a utility in the town as a whole. See, in this connection, Valcour v. Village of Morrisville,
For the foregoing reasons, judgment must be reversed, and cause remanded with directions to vacate and set aside the order of the Public Service Commission.
By the Court. — Judgment reversed, and cause remanded with directions to vacate and set aside the order of the Public Service Commission.