202 Wis. 223 | Wis. | 1930
The following opinion was filed June 11, 1930:
All parties here agree that the question decisive of the issues in both cases is whether or not the severance by the Dekorra Company in September, 1929, of the connection which had existed under the contract since 1914 constitutes a violation of sec. 196.50, Stats. If it did not and the Dekorra Company had the right to re-establish its exchange and return to the status quo which existed prior to the contract, then as an independent utility it had the right to seek or its subscribers had the right to seek joint service under the physical connection statute.
Sec. 196.50 is set out in the- margin.
It is to be noted that sec. 196.04 (2) provides that where the utilities cannot agree as to the physical connection the Railroad Commission may, if certain prerequisites exist, “direct that such use be permitted and prescribe reasonable conditions and compensation for such joint use, and that such physical connection or connections be made, and determine how and within what time such connection or connections shall be made.” Here the two utilities did agree, subject to the approval of the Railroad Commission. The Railroad Commission approved the agreement as a whole.
The commission under the statute has no authority to compel the Dekorra Company to re-enter into the relationship created by the contract, it having withdrawn itself from that relationship and there being no authority in the statute to require it to enter into such a relationship in the first instance. No reason is pointed out for holding the reservation contained in the contract which operated in favor of both parties invalid and we see none. Both companies were apparently in existence and doing business prior to the enactment of the law, and such franchise rights as they had were continued subject to the terms of the act. Sec. 1797m— 74m, Stats. 1913. It seems self-evident that if the Dekorra Company entered into a contract with the approval of the commission which contained a clause reserving to itself the right to terminate its relationship and resume its former status, it would be a species of usurpation on the part of the Railroad Commission to require the Dekorra Company to remain in the relation created by the contract and deny to it the benefit oí the clause reserving to it the right to terminate that relationship. Whether the parties might lawfully have entered into the contract of 1914 without procuring the approval of the Railroad Commission and what their relation would have been in such case, we need not stop to inquire. The contract was approved by the
By the Court. — It is ordered that the judgment in No. 181 and the order in No, 133 be affirmed. .
A motion for a rehearing was denied, with $25 costs in one case, on October 14, 1930.
Section 196.50 Competing utilities; indeterminate permits, telephones. (1) Certificate of necessity. No license, permit or franchise shall be granted to own, operate, manage or control any plant or equipment for the conveyance of telephone messages, or for the production, transmission, delivery or furnishing of heat, light, water or power in any municipality, where there is in operation under an indeterminate permit a public utility engaged in similar service, without first securing from the commission a declaration, after a public hearing of all parties interested, that
(2) Telephones, extension. No public utility furnishing telephone service shall install or extend any telephone exchange for furnishing local service in any town where there is a public utility engaged in similar service, without first having served notice in writing upon the commission and such other public utility of the installation or extension of such exchange which it proposes to make, or make such installation or extension if the commission, within twenty days after the service of such notice, shall, upon investigation, find and declare that public convenience and necessity do not require the installation or extension of such exchange. Any public utility already engaged in furnishing local service to subscribers within any city or village may extend its exchange within such city or village without the authority of the commission. Any public utility operating any telephone exchange in any city or village shall, on demand, extend its lines to the limits of such
(3) Second utility. Any permit, license or franchise which shall contain any term whatsoever interfering with the existence of a second public utility is hereby amended in such manner as to permit any municipality to grant a franchise for the operation of such second public utility.
(4) Municipality restrained. No municipality shall hereafter construct any public utility where there is in operation under an indeterminate permit in such municipality a public utility engaged in similar service, without first securing from the commission a declaration, after a public hearing of all parties interested, that public convenience and necessity require such municipal public utility.
(5) Injunction. Pending investigation and finding by the commission as to whether public convenience and necessity require a second utility, the furnishing of any public utility service in any municipality contrary to the provisions of this section may be enjoined at the suit of the state or of any public utility having an interest therein.