161 Wis. 122 | Wis. | 1915
The validity of the judgment is challenged (1) because it failed to adjudge that the sum of $525,000 is-less than just compensation for the taking of the property 'appraised; (2) because the trial court should have passed upon the question of value as. an original question of fact,, giving the decision of the Commission the effect of only casting upon plaintiff the burden of proof, if not already there; (3) because, construing the statute as the court did to authorize the appraisal of the whole property, the order should' have been adjudged void for want of jurisdiction in the Commission; (4) because the Commission should have valued plaintiff’s equity of redemption by itself and ordered its-value paid unconditionally to the plaintiff, or (5) it should have made some other provision so that the plaintiff could ob- \/ tain its money without being required to mature its bonds by paying a premium thereon, they being worth in the market not more than their face; (6) because the order did not provide for crediting plaintiff with the sum of $8,481.25 taxes levied against its property for the year 1913, the city having-taken possession thereof October 4, 1913; and (7) because the order of the Commission should have fixed a time within which the city should be required to pay or provide for the payment of the money before it could take possession thereunder. The first four assignments of error attack the validity of the whole judgment, while the last three claim the order is unreasonable in not making the provisions mentioned and call only for á modification of the judgment.
In the present case it is not claimed that the Commission did not take into account the main elements of value, but it is argued that an entirely inadequate amount was placed upon going value or else the Commission erroneously failed to consider an item of about $54,000 extra reproduction cost of laying pipes under pavements. In their decision the Commission present a table showing the cost of-reproduction and the present value of the different groups into which they divide the plant. They find the reproduction cost to be $514,215 and the present value to be $453,541. These items include an item of $1,261 for reproduction cost of laying pipes under paving actually disturbed by the utility in laying their pipes, but do not include an item of about $54,000 reproduction cost of now disturbing paving over pipes laid before there was any paving. The Commission in discussing the table say:
“By including the reproduction cost and present value of all paving now existing over mains, whether' disturbed or not, the cost of reproduction for the first six groups becomes $569,510, present value becomes $507,149. These of course must include allowance for overhead charges. The totals for the property therefore become $579,808 cost of reproduction, and $510,953 present value.”
From this statement plaintiff argues that in fixing the value of the plant as an entirety the Commission placed a present valúe of $510,953 upon the physical property and hence allowed only the difference between such sum and the total valuation of $525,000 for going value, an entirely inadequate sum it is claimed. While the Commission included the reproduction cost of all paving in arriving at the stated present value of the plant, it does not follow that they ac
“The cost of reproduction of the physical property, excluding materials and supplies and nonoperating property, but including all paving now over mains, is $569,510, the corresponding present value $510,953. Bearing these facts in mind, as well as the present condition of the plant, the needed changes, its capitalized value on an unduly low depreciation rate, and also certain important features of the original franchise under which the company existed for most of its life, it is the judgment of the Commission that $525,000 represents fair compensation to the owners of the company for the property used and useful for the convenience of the public, regarding that property as an entity.”
One thing is evident. The Commission either allowed $54,000 for reproduction cost of paving not disturbed and about $14,000 for going value in their final award, or else they disregarded the item of $54,000 and allowed about $68,000 for going value.
A consideration of reproduction cost is profitable and proper only in so far as it will aid in determining the ultimate fact to be ascertained by the Commission, namely, the just present value of the utility as an entity. If it is apparent that an evidentiary fact will not so aid the Commission or that it will lead to erroneous results, such evidentiary fact should be disregarded. Cost does not always equal value.
In rate-making eases reproduction cost of laying pipes under pavement has been disregarded. People ex rel. Kings Co. L. Co. v. Willcox, 210 N. Y. 479, 104 N. E. 911; Cedar Rapids G. L. Co. v. Cedar Rapids, 144 Iowa, 426, 120 N. W. 966, affirmed in 223 U. S. 655, 32 Sup. Ct. 389; Des Moines Gas Co. v. Des Moines, 199 Fed. 204. The present reasonable value of the utility determines rate as well as price. In both the original investment is a valuable aid in determining the present value of the property, but it is not controlling. It is only one of several items to be considered in arriving at present value, whether for purchase or rate-making purposes. If the original investment was extravagant or if parts of the physical property have become obsolete, the public should not be required to pay on original cost either by way of rate or purchase. On the other hand, if the original investment was prudent and values have enhanced the utility should reap the benefit thereof both in rate and selling price.
An elimination of the item $54,000 results, as before*
Some argument is made that the other items of physical property were unduly depreciated by the Commission, but we cannot say that the circuit court erred in affirming the findings made by it as to them. While it appears that the net earnings of the plaintiff are about $40,000 per year, it also appears that it would require upwards of $100,000 to put the plant in good condition. Earnings, if derived from a reasonable rate, are important factors in determining value. But like all other factors they are not in themselves conclusive. Upon the whole evidence we discover no valid ground for disturbing the valuation fixed by the Commission upon the property of the plaintiff as an entity and approved by the trial court.
It is urged that the trial court did not pass upon the question of value as an original question of fact, but merely held that the Commission had committed no error in its proceedings and so affirmed the award. In this counsel is mistaken. The first finding of the court recites that the Commission fixed $525,000 as the compensation to be paid the plaintiff for its waterworks system. The second finding is “that the compensation so fixed by the Commission is lawful.” This finding is short, but it answers the legal call. In finding that the compensation fixed by the Commission was lawful the court found that it was just and adequate, else it could not -be lawful.
The statute, sec. 1797m — 84, however, does more than merely throw the burden of proof upon the plaintiff. Upon appeal from an order of the Commission the burden rests
From the statement of facts it will be seen that bonds secured by a trust deed upon the property of the plaintiff were, at the time compensation was fixed, outstanding to the amount of $424,000. . It is claimed that proper service upon the bondholders was not had and hence the Commission and the court had no jurisdiction of them. We shall not inquire into or determine whether or not the bondholders were properly served by the statutory publication, since they are not necessary parties to this proceeding. It appears that the plaintiff has the right to call in the bonds at any time by paying a premium of seven and one-half per cent. It further appears that the compensation fixed by the Commission is more than sufficient to pay the full amount of the bonds including the premium, and that the Commission required plaintiff to call in and cancel the bonds and turn over the utility free from all liens. This the plaintiff has a right to do and this the Commission can require to be done, and if this is done no right of any bondholder is in any way adversely affected. Each bondholder agreed that plaintiff might declare the bonds due at any time and have them canceled upon paying their face and premium. Since the order of the Commission operates only upon plaintiff and requires it to do no more than it has a per-feet contract right with its bondholders to do, they are in no
The statute does not contemplate that a mere equity of redemption shall be valued by the Commission and purchased by the city. It is the property of the utility that is bought. Green Bay & M. C. Co. v. Kaukauna G., E. L. & P. Co. 157 Wis. 412, 147 N. W. 701. And where the compensation awarded is sufficient to pay up all existing liens and they are ripe for payment, they must be paid by the utility and the property turned over to the city freed from any and all outstanding claims.
What has already been said disposes of the claim that the Commission should, have provided that plaintiff receive its money without calling in its bonds. When it accepted an indeterminate permit it agreed to sell to the city at any time the latter might elect, and it must then have contemplated that if the city did so elect before the bonds matured it would have to call them in. The city is under no duty to assume plaintiff’s contract obligations. Green Bay & M. C. Co. v. Kaukauna G., E. L. & P. Co., supra. It is bound to pay only the just value of the utility. The fact that plaintiff has entered into a contract whereby it will cost it something to deliver the utility to the city cannot affect the reasonable value of the utility. The city is not concerned with the terms of settlement between the utility and its creditors so long as it receives the property free from liens. To require the city to pay the premium would be to require it to pay the bonus plaintiff agreed to pay for the use of money. Municipalities have nothing to do with past obligations incurred by the utility except in so far as they may be a lien upon the property bought. If they are, the utility must satisfy them out of the purchase price if that is sufficient to do so. That is all the Commission required in this case.
The city levied the sum of $8,481.25 taxes on plaintiff’s
Tbe last claim made is that tbe order of tbe Commission is unreasonable because it did not require tbe city to pay or provide tbe means of payment before it took possession of tbe plant. This objection, under tbe facts shown, has now no merit. It appears that on March 27, 1914, and within tbe six months fixed by tbe Commission tbe city duly tendered plaintiff tbe sum of $552,926.18, being tbe amount of tbe award of $525,000 and $11,821.53 agreed upon for additions and supplies, with interest on both sums from October 1, 1913, at six per cent. It also appears that such tender has at all times since been kept good. As pointed out in Janes v. Racine, 155 Wis. 1, 143 N. W. 707, tbe provision of sec. 3, art. XI, Const., that a city acquiring a public utility shall
By the Court. — Judgment affirmed.