152 Wis. 359 | Wis. | 1913
Lead Opinion
Tbe allegations of tbe complaint indicate that tbe plaintiff and tbe defendant made tbis contract with tbe object in view of so conducting tbeir telephone businesses as to avoid duplication of lines for tbe same territory, to restrict tbeir respective fields of operation, to increase tbe extent and efficiency of tbe service, and to avoid tbe increase of ratesi due to a duplication of tbe plants in tbe same territory. It also appears that in making tbis arrangement tbe parties did not thereby gain such control of tbe public service as to enable them to impose exorbitant charges for tbe service on tbeir patrons. The1 contract provides for a specific city rate to business men and merchants, if such rates should be approved by tbe state railroad commission as a reasonable one. Moreover, under tbe law tbe commission bad power to reduce these rates if they should be found excessive. Tbe facts stated also show that tbe plan of combination would probably enhance tbe efficiency of tbe service and that tbe patrons of each company would have tbe advantage of service connection with all tbe patrons of both lines, in place of service connection only with tbe patrons of one of tbe companies. It is therefore clear that so far as these public interests are concerned they are promoted by tbe contract and that there is no ground for objection to its enforcement in tbis regard.
• It however is contended that tbe contract is void because it violates sec. 1791/, Stats., which provides:
“Any corporation organized under tbe laws of tbis state which shall enter into any combination, conspiracy, trust, pool, agreement or contract intended to restrain or prevent competition in tbe supply or price of any article or commodity in general use in tbis state, or constituting a subject of trade*362 or commerce therein, . . . shall, upon proof thereof, in any court of competent jurisdiction, have its charter or authority to do business in this state canceled and annulled.”
It is obvious that the statute is directed against contracts which are violative of the public policy of the state respecting restraints of trade and competition in the supply of any commodity in general use constituting a subject of commerce. The furnishing of telephone service may be classed within the general terms of the statute as the supplying of a commodity constituting a subject of commerce. As heretofore indicated, the contract, in the light of the allegations of the •complaint, does not operate to restrain the supply of this commodity to the public upon established telephone lines, nor does it tend to impose upon them arbitrary and oppressive burdens through the prevention of competition within the field of their operation.
It is argued that the contract prevents the defendant corporation from seeking new fields of operation for the conduct of its business and thus operates to restrain it from supplying telephone service to the public in such new territory. An application of the provisions of the contract to the facts and circumstances as alleged in the complaint clearly shows that the defendant is engaged in a local telephone business in the city of Cumberland and vicinity; that its long-distance service is connected with the Wisconsin Telephone Company; that under the contemplated arrangement it is empowered to furnish telephone service direct to the patrons it retains and to furnish exchange service to all its former patrons who have been transferred to the plaintiff, and also to those who might contemplate securing such service on any of the lines embraced in the contract; and that the defendant is not precluded from making telephone connections with telephone companies other than the plaintiff in territory not embraced within the field of plaintiff’s actual service. The facts and
We are persuaded tbat tbe contract in question is not intended to restrain or prevent competition, nor does it so operate in conducting tbe defendant’s telephone business, in tbe light of tbe provisions of this statute and tbe policy of the state respecting this subject of commerce.
It is contended tbat tbe contract deals witb a transfer of personalty and witb personal services, and hence is not specifically enforceable, and tbat plaintiff has an adequate remedy at law to compensate it for any breach thereof. Tbe defendant has complied witb many of tbe terms and conditions of tbe contract, but refuses to comply witb tbe provision for tbe transfer to plaintiff of its rural lines upon tbe terms agreed on, and refuses to refrain from constructing new rural lines. It is manifest from tbe nature of these contentions tbat tbe plaintiff’s remedy at law, by way of compensation for breach of these conditions, falls short of doing complete justice between tbe parties. To ask compensation for repeated and continuous refusals of tbe defendant to comply witb the specified terms of tbe contract would also be impractical, in view of defendant’s acceptance of tbe benefits of other terms of tbe contract. It is apparent tbat these different agreements constituted a mutual consideration tbe one for
By the Court. — The order appealed from is affirmed.
Concurrence Opinion
(concurring). I agree with the result solely on the ground that the policy of this state as evidenced by the Public Utilities Act contemplates and provides for just such situations as will be produced by the contract here attacked, namely, situations where the public will be served by one public utility to the exclusion of competing companies of the same kind, and where the ordinary effects of such a monopoly, to wit, the raising of rates of service to excessive figures, will be prevented by the utilities commission. The idea of the law is that monopoly so regulated is preferable to ruinous competition ending in unregulated monopoly.
In my judgment the public utilities law changed the policy of the state with reference to competition between utilities of this kind, and modified sec. 1791/, Stats., so as to make agreements of this kind possible and legal, which before the passage of that act would have fallen within the inhibition of sec. 1791/.
Rearing that the opinion of the court may be understood as intimating that the agreement in the absence of the public utilities law could be upheld in the face of sec. 1791/, I wish to make my position clear.
The case of Calumet S. Co. v. Chilton, 148 Wis. 334, 135 N. W. 131, is cited in the opinion of the court, and fearing that this citation and our silence would be considered as an approval of some dicta in that case we append this note. The opinion therein by Justice Marshall filed March 4, 1912, is not the opinion of the court and reflects only the personal views of the learned jus
We do not agree that there was in tbe particular mentioned in tbe opinion last referred to a mistake in La Crosse v. La Crosse G. & E. Co. 145 Wis. 408, 130 N. W. 530. We cannot assent to any suggestion that tbe reserved power of repeal found in sec. 1, art. XI, Const., is confined to tbe mere power to repeal tbe act creating a corporation, leaving tbe owners of tbe property formerly owned by tbe corporation free to rein-corpórate under tbe general incorporation laws and exercise and enjoy all other former corporate franchises as irrepealable grants. We are not sure that tbe opinion in question means this or will be so understood, but we desire to leave no doubt of our attitude on this question. Tbe language of sec. 1, art. XI, is from one viewpoint narrow, because it was intended thereby merely to obviate tbe effect of tbe Dartmouth College Case, 4 Wheat. 518 (Black River Imp. Co. v. Holway, 87 Wis. 584, 59 N. W. 126), and it-was then thought unnecessary to go further in order to vindicate tbe power of tbe state to control its corporations notwithstanding tbe clause in tbe federal constitution forbidding tbe passage by tbe state of laws impairing tbe obligation of contracts. In the Water Power Cases, 148 Wis. 124, 134 N. W. 330, this court held that an act of tbe legislature conferring upon a corporation tbe right and power to build and maintain a dam in a navigable stream, which grant tbe corporation accepted, was nevertheless repealable at tbe pleasure of tbe legislature, even where tbe corporation bad expended large sums of money in complying with said grant. This grant included all tbe corporate powers and franchises of tbe corporation defendant except tbe mere right to exist as a corporation, and yet was repealable at tbe pleasure of tbe legislature, although of course subject to other provisions of tbe constitution in force and applicable notwithstanding this conceded right of repeal. Tbe precedents cited in that opinion sup
Further, with reference to the opinion of the court in Calumet S. Co. v. Chilton, supra, we desire at the earliest practicable moment to withdraw any acquiescence in the dicta found in that opinion to the effect that a municipality may not do its own lighting if there is present in that municipality an electric lighting company holding an indeterminate permit and standing ready to supply the city with such lighting at rates fixed by it or by the railroad rate commission. The contrary would be to hold that through the railroad rate commission the taxpayers of the municipality may be taxed for the purpose of paying dividends or aiding to pay dividends on the stock or interest on the bonds of an impecunious public service company. We do not think the legislature could do this, nor could any commission deriving its power from the legislature. This would be the result of a ruling which would forbid the city to do its own lighting and compel it to buy from the single public utility within its boundaries, at the same time permitting this utility itself, or the railroad rate commission, to fix rates adequate to give the private investors in the stock and bonds of such public utility a fair return upon their investment, if without such public lighting there would not be a fair return. Patrons or consumers of electric light are free to contract or refuse to contract with such public utility, but in the case mentioned the taxpayer would have no such option.
