City of West Allis v. City of Milwaukee

| Wis. | May 1, 1923

Rosenberry, J.

A number of questions have been argued and we are asked to make a determination of questions argued. In view of the nature and importance of this case we shall make only such determination as is necessary to a decision of the question presented, and that is whether or not the complaint states facts sufficient to constitute a cause of action.

The contract between the village (now city) of West Allis and the city of Milwaukee was entered into prior to the enactment of the public utility law. It would seem to require no argument to show that the city of Milwaukee, having entered into a valid contract, could not thereafter arbitrarily change the contract price of the water to be furnished under the contract and so impose a new and different liability upon the other party to the contract. It is argued on behalf of the city of Milwaukee that, having a right to terminate the contract, it may fix a new rate, and that the fixing of the new rate amounts to a termination of the contract with an offer to renew it on the part of the city of Milwaukee upon the new rate fixed by the city of Milwaukee.

There are two answers to this proposition. First, it does not appear that the city of Milwaukee has ever attempted to exercise the power which it claims it has by virtue of the provisions of paragraph 4 of the contract, which provides that it shall have the' right to shut off water and discontinue the. supply thereof whenever in the judgment of the board of public works the best interests of the city of Milwaukee shall require it. Second, it is alleged in the complaint that it was agreed and understood by the parties to the contract that it was to continue until the territory embraced in the plaintiff city should be annexed to the city of Mihmukee (an event which has not yet occurred).

We shall not attempt to say now whether or not the provisions referred to in paragraph 4 relate to a mere temporary suspension of service due to some emergency, or whether, standing by itself, unaided by other facts, it reserved to the city of Milwaukee the right to declare the contract at an end. Nor shall we attempt to determine here whether ok not the enactment of ch. 279 of the Laws of 1919 operated to except the city of Mihmukee, as the owner and operator of its waterworks system, from the provisions of the public utility law. In any event, under the facts stated in the complaint the city of Mihmukee could not arbitrarily fix a new rate and so modify and change the obligations of the contract into which it entered with the village of West Allis.

By the Court. — The order appealed from is affirmed, and the cause remanded for further proceedings according to law.