169 Wis. 183 | Wis. | 1919
The defendant contends (1) that the order should be affirmed for the following reasons:
“(1) Various legislative acts, and particularly ch. 565, Laws 1917, which, by state-wide rule, defines the duty of street railway companies in respect to construction of extensions, have superseded,» vacated, and made impossible of performance the provisions of said ordinance relating to the construction of extensions.
“(2) The state has provided a remedy before a special tribunal for the purpose of securing the construction of street railway extensions. Under such circumstances the judicial policy of the state requires that the petitioner prosecute its remedy before the special tribunal.
“ (3 ) Even the ordinance imposes no duty to construct the extension unless public convenience and necessity require its construction. The railroad commission has determined that*188 public convenience and necessity does not require the construction of the extension.
“(4) The ordinance relates only to the extension of radial. lines to the city limits and not to the construction of new lines.” '
Plaintiff contends that the order should be reversed (1) because in the 1900 franchise the clause in question is a term of said franchise so as to constitute a contract within the provisions of sec. 10, art. I, of the constitution of the United States; (2) that sec. 1863, Stats., as amended by ch. 565, Laws 1917, applies only to suburban and interurban street railways and has no application to street railways within cities; (3) that the power to designate streets upon which street railways may construct their lines is a legislative power and cannot be delegated to the railroad commission; (4) that if sec. 1863, as amended by ch, 565, Laws 1917, is held to hr effect amend sec. 4 of the ordinance of January 2, 1900, it is unconstitutional because it impairs the obligation of a contract.
The main questions raised and considered on this appeal are determined by previous decisions of this court.
1. Sec. 1863, Stats., does not now apply and has not applied exclusively to interurban or suburban railroads. Milwaukee L., H. & T. Co. v. M. N. R. Co. 132 Wis. 313, 329, 112 N. W. 663; Manitowoc v. Manitowoc & N. T. Co. 145 Wis. 13, 129 N. W. 925.
2. Sec. 1863 is as follows, that part introduced by ch. 565, Laws 1917, being italicized:
“Any street railway corporation operating within any municipality shall extend its lines and furnish service thereon whenever, after complaint made as provided in sec. 1797 — 4 and public hearing after notice to all parties interested, the railroad commission shall have found and declared that public convenience and necessity require such extension and such additional service and that the construction and operation of such extension will not impair the earnings of the said cor*189 poration so as to prevent an adequate or fair return, and provided that any such order shall be subject' to judicial review in like manner as nozo provided by lazo zvith respect to other orders of the railroad commission, and such corporation may extend its railway to any point within any town adjoining the municipality from which it derived its franchise, and for such purposes may, with the written consent of a majority of the supervisors of such town, lay and operate its railway upon, across and along any highway, but not so as to obstruct common public travel thereon. Corporations may be formed and governed in like manner as is provided in section 1862 for the purpose of building, maintaining and using railways with rails of wood or iron in any city, village or town, or to extend from any point in one city, village or town to, into or through any other city, village or town, and for running cars propelled by animals or other power for the carriage of either passengers or freight; and for that purpose, with the consent of the common council of any city, the board of trustees of any village and the written consent of a majority of the supervisors of any town in, into or through which such railway or tramway may extend, may lay and operate their railways or tramways upon, across and along any highway, but not so as to obstruct the common public travel thereon. In any city or village the consent of the common, council or board of trustees shall be given by ordinance, and upon such terms and subject to such rules and regulations and the payment of such license fees as the common council or board may from time to time prescribe; provided, that the common council or board shall not alter or change the license fee prescribed for any such corporation oftener than once in each five years.”
Even if prior to the enactment of ch. 565, Laws 1917, sec. 1863 had applied only to suburban or interurban railways, there is nothing to indicate that street railways operating within cities are excepted from the language “within any municipality,” which clearly applies to all municipalities, including cities.
3. The amendment to sec. 1863 must be construed with reference to the other provisions of the section. The power to grant a franchise for the occupation of city streets is by
We do not decide or consider, because not presented by this record, the question whether or not under the January 2, 1900, ordinance a franchise is thereby granted for the extension of the defendant’s lines upon such streets as public convenience and necessity shall thereafter require within the terms therein stated. The ordinance of May 7, 1917, removes the question from this case.
4. Sec. 1863 must be construed to mean that a street railway corporation operating within a municipality is bound to construct its street railway upon such streets as the municipality in question may theretofore or thereafter have designated by the giving of a franchise or otherwise, if public convenience and necessity require such extension. If a municipality so circumstanced has not granted and refuses to grant a franchise for an extension under existing law, the street railway company cannot extend its lines, and all orders of the railroad commission for the extension of lines must be subject to the provision that a franchise, permit, or license therefor has been given or be first obtained from the proper municipality.
5. Under that part of the January 2, 1900, ordinance referred to, the city may compel the construction of lines where public convenience and necessity require it.
6. The amendment to sec. 1863 made by ch. 565, Laws 1917, provides a special tribunal which is to ascertain a fact,
7. The clause of the ordinance of January 2, 1900, by its terms provides that an extension shall not be required unless public convenience and necessity demand it, and in this case we hold that the ordinance is amended no further than that the railroad commission is made the exclusive tribunal for the ascertainment of that fact.
8. The question as to whether or not the clause of the January 2, 1900, ordinance referred to is a “term” within Superior v. Duluth St. R. Co. 166 Wis. 487, 165 N. W. 1081, does not arise. Changing the remedy by which a right under a contract is enforced does not impair the obligation of the contract. Borgnis v. Falk Co. 147 Wis. 327, 366, 133 N. W. 209. There is a wide distinction between the power of a municipality to regulate, a utility under a delegated power and the authority of the state in the same field. Milwaukee E. R. & L. Co. v. Railroad Comm. 153 Wis. 592, 142 N. W. 491.
By the Court. — Order affirmed.