133 Wis. 588 | Wis. | 1907
Lead Opinion
This action is instituted on the relation of’ a resident and taxpayer of the city of Milwaukee to oust the defendant from the exercise of public rights, privileges..
In the recent case of Wis. Tel. Co. v. Milwaukee, 126 Wis. 1, 104 N. W. 1009, tbe question of tbe power of tbe city of Milwaukee to grant rights and privileges and to impose conditions upon telephone companies for tbe conduct of such a business in tbe city was considered, and it was held to be established under tbe statutes and decisions of tbis court that:
“No power is conferred upon the defendant [city] under its charter or by any law of tbe state to grant to tbe plaintiff tbe privilege of constructing, maintaining, or operating its telephone lines upon tbe streets of the . . . city,” and that “no authority is conferred upon tbe defendant [city] to> impose any other conditions . . . except such as it may law*594 fully impose under its power to control and regulate the "streets, alleys, and public grounds and prevent the incumbering thereof, under its general police powers.”
It is obvious, therefore, and it is not controverted, that the ordinance can only be sustained as an exercise of the city’s police power. In its first provision the ordinance declares that the defendant
“is hereby authorized and permitted to construct, maintain, and operate a public telephone exchange and system in the city of Milwaukee, and for that purpose the telephone company is hereby authorized and empowered to enter in and upon the streets, avenues, alleys, and other public grounds and ways within the city, for the purpose of erecting, maintaining, and operating said telephone system.”
The ordinance also contains many provisions which embody conditions and agreements respecting the exercise of franchises and public functions. Among this class of provisions are those establishing a schedule of rates to be charged for the services rendered by the defendant; the payment of a portion of its earnings above a specified amount as a revenue to the city; the payment to its patrons of rebates out of its earnings in excess of certain amounts; the payment of the expenses of legal proceedings in actions by parties other than the company for the enforcement of the ordinance; the furnishing of telephones to the city free of charge; obligating the defendant to connect its system with long-distance systems operating in the city; requiring the defendant to employ none but union laborers in good standing in trade organizations and to pay such employees the wage scale of their respective organizations; and providing that the telephone system and the property" connected therewith shall be transferred to the city upon compliance by it with the provisions of the ordinance for its purchase, pursuant to written notice and other conditions it prescribes. It is manifest from the nature and context of the provisions on these subjects' that the
It is without dispute that the defendant is organized under the laws of this state for the purpose of conducting a tele
“In such case would tbe intruder be permitted to say, ‘1 have not usurped a franchise, because there can be no franchise without a grant.’ Tbe response would be: ‘You have usurped a power of tbe government. You cannot act as if you bad tbe franchise and say you are not exercising it.’ ” Ex parte Henshaw, 73 Cal. 486, 493, 15 Pac. 110.
To tbe same effect is tbe bolding in State ex rel. Vilter Mfg. Co. v. M., B. & L. G. R. Co., supra, where a commercial railroad accepted a franchise from tbe city of Milwaukee to operate a street railway. This was declared as unauthorized for want of power in tbe railroad company to exercise tbe
It is averred that the relator has not sufficient interest in the subject matter of this action to enable bim to institute it. The complaint alleges that relator is a resident, elector, and taxpayer of the city of Milwaukee. He avers that he is authorized to prosecute this action under sec. 3466, Stats. (1898), providing for the bringing of actions by the attorney general in the name of the state upon his own information or the complaint of any private party, and further providing:
“Such action may be brought in the name of the state by a private person on his own complaint when the attorney general refuses to act. ...”
In State ex rel. Wood v. Baker, 38 Wis. 71, it is stated:
“Before such a statute the courts of the state might perhaps, in proper cases, have authorized proceedings in the*598 name of the attorney general, if that officer, wrongfully refused to act and it was necessary to proceed in his name. Be that as it may, this branch of the section gives a new proceeding by private parties in the name of the state, without the use of the attorney general’s name or office, in cases of local office, and in all cases in which that officer refuses to act. This is plainly in the nature of a civil action, although in the name of the state.”
It stands admitted that the attorney general has refused to act. Under the terms of the statute, upon the attorney general’s refusal to act, the action, though one by the state, may be prosecuted on the relation of a private party. If the relator is a taxpayer he has sufficient pecuniary interest in the matter, if the exercise of the powers and franchises may involve the city in a pecuniary way. That the city may become involved in the expenditure of money on account of this ordinance, through litigation concerning it, the purchase of the business, and in other ways as a party to it, is readily perceived. . If so, then the city’s money may be unlawfully and unnecessarily wasted through an unauthorized channel. State ex rel. Weinsheim v. Leischer, 117 Wis. 475, 94 N. W. 299.
The ordinance being void and the defendant having no lawful right to exercise the powers and franchises it has thus usurped, it must result that the complaint states facts sufficient to constitute a cause of action and to oust it from such usurpation, and the demurrer should have been overruled.
By the Oowrt. — The order appealed from is reversed, and the cause remanded with directions that the circuit court enter an order overruling the demurrer and for further proceedings according to law.
Concurrence Opinion
(concurring).. While I am fully in accord ■with the decision reached in this case, I do not agree with some of the reasoning contained in the opinion. .If I rightly understand it, the opinion holds that the contract features of the ordinance (such as the fixing of rates, the payment of a part of its revenues to the city, and the like) constitute of themselves public privileges or franchises which the city had no authority to grant, and it is only by reason of the existence of these provisions that the ordinance is condemned and the defendant found to be guilty of usurping a franchise. I cannot agree with this idea. In my judgment the unlawful franchise consists in the attempted grant of the right to use the public streets and ways of the city and to carry oil its business therein. The many contract provisions cannot in any sense be considered as franchises or grants of privileges, but they simply serve to demonstrate very clearly that the city in attempting to grant the use of its streets to the company was attempting to grant a franchise and was not attempting simply to exercise its police power. As said in the case of State ex rel. Vilter Mfg. Co. v. M., B. & L. G. R. Co. 116 Wis. 142, 92 N. W. 546, such contract provisions and exactions tend very strongly .to stamp the ordinance as an attempted franchise, and repel the idea that it was intended simply as a police regulation. Eor this purpose they seem to be very significant, but not otherwise.
The grant of the right to use the streets for the purpose of conducting its business being the real franchise which is attacked, we are met with the proposition that the company already had this right by grant from the state, and hence that the attempted grant by the city is not a franchise in any sense, and quo warranto will not lie when no franchise has been usurped. This is the serious question in the case, and one upon which there is very little authority so far as my researches have gone. In the California case cited in the opinion (Ex parte Henshaw, 73 Cal. 486, 15 Pac. 110) it