215 Wis. 439 | Wis. | 1934
The following opinion was filed April 3, 1934:
The answer of the city of Belqit, while extended to great length, does not,deny any of the allegations of fact of the complaint contained in,the preceding statement of facts. It does deny that the plaintiff has the exclusive right to furnish municipal service, but, that is a, question of law. It thus only raises the questions of law whether under the allegations of the complaint the plaintiff, as the only public utility operating in the city under an indeterminate permit, now has, under the public utility law, the exclusive right and privilege of furnishing electrical current for the lighting of the streets and public buildings and
1. The rights of the parties herein are governed by the public utility law. The provisions of that law bearing upon the questions above stated were directly before the court in Calumet Service Co. v. Chilton, 148 Wis. 334, 135 N. W. 131. The city council of Chilton had adopted a resolution purporting to authorize the construction of a plant and equipment for furnishing electrical light and power to the inhabitants of the city and to the city for lighting its streets and public buildings. A utility was operating in the city under an indeterminate permit, as the plaintiff is operating in Beloit. The city was threatening to carry out its resolution. The public utility brought an action to enjoin the city “from building any municipal plant for the purpose of furnishing electric power or lighting to the said city or its inhabitants.” In that case this court went thoroughly into the subject of the rights and privileges of utilities operating under indeterminate permits and considerately and deliberately decided that the indeterminate permit of the plaintiff public utility covered both service to the inhabitants of the city and to the city for the lighting of its streets and public buildings, and held the utility had the exclusive right to furnish both kinds of service. The court also decided that the city could not proceed with the construction of its proposed plant without first procuring a certificate of convenience and necessity from the railroad (public service) commission, or purchasing the utility’s plant under the provisions of the utility statutes.
2. The holding of the Chilton Case has never -been overruled. The decision of the cáse lays down a rule of property
3. The respondent contends that the rule of stare decisis should not be .applied to the Chilton Case decision because, as is urged, the city of Chilton had nó right to construct a plant to serve the iphabitants of, the city; .and that as the decision could have .rested upon that .proposition alone; it was not necessary, to consider its right to. construct a plant-for municipal lighting and the decision .is obiter dicta. But both questions were directly involved in the case. This court might as well have.rested its decision alone upon the proposition that the existing utility had the exclusive,right to do street lighting as that it had the exclusive right to serve the inhabitants of the city. As quoted from Union Pacific R. Co. v. Mason City, 199 U. S. 160, 166, 26 Sup. Ct. 19, in Chase v. American Cartage Co. 176 Wis. 235, 237, 186 N. W. 598:
“Where there are two grounds upon either of which the judgment of the-trial court can be rested/and the appellate court sustains both,-the ruling on neither- is .obiter, but each is the judgment of the court and of 'equal validity with the other.”
Moreover, as stated in, Chase v. American Cartage Co., supra, p. 238:
“When a court of last resort intentionally takes up, discusses and decides a question germane to, though not neces*446 sarily decisive of, the controversy, such decision is not a dictum, but is a judicial act of the court which will thereafter be recognized as a binding decision.”
This is no new doctrine. It has been the declared law of this state for fifty years. The precise point was considered and discussed at length in an opinion by Mr. Justice Cassoday in Buchner v. Chicago, M. & N. W. R. Co. 60 Wis. 264, 19 N. W. 56, and position was taken as above stated. It was there declared that statements in an opinion of an appellate court upon points so involved in a case that it is the duty of counsel to argue them, which are deliberately passed upon by the court, are judicial dictum as distinguished from obiter dictum, and are as binding as if the decision huiig upon a single point.
4. The respondent also urges that the part of the Chilton decision relating to municipal service is not entitled to weight because a year after the decision was rendered Mr. Justice Kerwin, in a concurring opinion filed in McKinley Telephone Co. v. Cumberland Telephone Co. 152 Wis. 359, 140 N. W. 38, a case not at all involving the proposition here at issue, characterized the statement of the court upon that subject as dicta, and stated that he wished to withdraw the acquiescence therein of himself and Mr. Justice Timlin, both of whom participated in the decision. It is to be observed that the learned justice did not use the term obiter dicta. He manifestly considered the dicta referred to as the judgment of the court and effective as such. That the learned justices changed their minds is perhaps interesting, but it does not affect the stability of the judgment of the court or cast any considerable reflection upon its soundness. Fiad the point come before the court again during the incumbency of these justices they might have changed their minds again.
5. The respondent contends that the legislature has so amended the utility law since the Chilton decision as to ren
It is contended that this language implies that only-the construction of a plant or equipment is prohibited which is to furnish electrical current to private consumers.
In the first place the phrase “public utility” in sec. 196.50 (4) is a misnomer; a public utility by sec. 196.01 (1) is a corporation or individual owning or operating the plant furnishing the public service unless the context requires otherwise. In the original statute it meant nothing but such an owner. The statute as it now reads manifestly was not intended to prohibit the “construction” of a “corporation or person,” which would be its meaning if the words “public utility” were given the meaning originally given and now ordinarily given to them under the public utility law. We must therefore resort to construction to determine what the statute as it now stands means. In so doing we must bear in mind that the change of the statute was effected by a revisor’s bill, enacted by ch. 504, Laws of 1929, and that in such bills there is no intent to change the meaning of the statutes revised; and the statute will not be construed as effecting a change in meaning, unless the language used is so clear and explicit as not to be subject to interpretation. If there is any ambiguity in the changed language, it will be interpreted to mean as in the statutes revised. Oconto Com
As to'.this, we, will further,, say that the insertion of the ■ words “public utility” for “plant or equipment” in sec. 196.50 (4) is probably accounted .for as follows : Ch. 48, Laws of 1911, made, owners of. toll-bridges public utilities. In Stats. 1911, to sec. 1797m— 1, which defined the term “public utility,” the words “or that now or hereafter may own, operate, manage or control any toll-bridge wholly within this state” were added. . This statute to this point remained unchanged until and including Stats. 1927. In 1929 a revisor’s bill was passed revising the utility law (ch. 504, Laws of 1929).. The opening sentence of sec. 196.01 (1) was made to read : (1.) “As used in chapters 196 and 197, unless the context requires otherwise, ‘public utility’. means and embraces ■ every . . .. [owner of] any toll-bridge or any plant or equipment . . . [for furnishing] heat, light, water or power either directly or indirectly to or for the public.” .
By sub.. (4) of sec. 196.01 the term “service” was declared to be used in its broadest sense, and by sub. (5) the indeterminate permit was declared to embrace every grant “of any public utility service,” which would include the service rendered by toll-bridges. In this revisor’s . bill sec. 196.50 (4), which supplanted sub.. (3) of sec. 196.01 in the Statutes of 1927, the words “public utility” supplanted the words “such plant or equipment” apparently because a toll-bridge • does not properly fall within the meaning of “plant or equipment.”. A .plant or equipment and a toll-bridge both.fall.within the term-“public utility” construed as meaning the service performed -by a public utility. This satisfactorily explains .the-use of the words “public utility” in sec. 196.50 (4). They cover a “plant or • equipment”
Respondent also contends that chs. 183 and 475, Laws of 1931, by not making provisions therein expressly applicable to municipalities as well as public utilities, somehow indicate an intent that municipalities may do as here threatened. We are unable to perceive any such indication. Subs. (1) and (2) of sec. 196.49, as its terms are fixed by these chapters, contain the statements of the construction of the plants and equipment prohibited. Sub. (1) prohibits commencing construction by public utilities “in any municipality where there is not in operation under an indeterminate permit a public utility engaged in similar service.” As the plaintiff is so operating in Beloit, this subsection does not apply. Sub. (2) provides that no public utility shall begin extensions of its plant without approval of the public service commission. This manifestly does not apply to the existing situation. Sub. (8) of sec. 66.06, Stats., is also referred to as indicating like intent. Pars, (a) to (c) of sub. (8) hark back to 1882. At the time the utility law was enacted they stood as secs. 926 — 126 to 926 — 129, Sanborn & Berryman’s Supplement, which provided how cities of the third and fourth
7. It is contended that the decision of this court in Wisconsin Traction, L., H. & P. Co. v. Menasha, 157 Wis. 1, 145 N. W. 231, expressly authorizes what is here attempted. This contention cannot be upheld. Prior to the enactment of the utility law the city of Menasha had in operation a plant for the lighting of its streets. This plant was in operation at the time of the institution of the suit. The plaintiff corporation had a franchise to render electrical service to private persons. It had been operating under this franchise prior to the enactment of the utility law, but had not been in the field of street lighting. It had not voluntarily surrendered its franchise and accepted an indeterminate permit, but the 1911 Statute forced the indeterminate permit upon all public service corporations that had not theretofore voluntarily accepted it. The city passed a resolution to issue $40,000 of bonds for the purpose of enlarging its plant for the purpose of doing commercial lighting. The plaintiff brought suit to enjoin it from so doing. The court held that the city could not enter the field of private lighting without procuring a certificate of convenience and necessity. It did not interfere with the existing- situation as to municipal lighting because that field was occupied by the city before
It is also contended that Neacy v. Milwaukee, 151 Wis. 504, 139 N. W. 409, is inconsistent with or inferentially overruled the Chilton Case. That action was brought by a taxpayer to enjoin the city from constructing and operating a municipal light and power-plant and using money and issuing bonds therefor on the ground of invasion of the public -utility field without .procuring a certificate of convenience and necessity. The city prior to the enactment of the public utility law had begun the construction and operation of a municipal power-plant. Bonds had been voted therefor and the issue had been declared void for reasons entirely apart from the utility law. However, the city had gone ahead and sold some of the bonds and commenced the construction of a plant. The bonds so sold had been validated by act of the legislature. The court said of the contentions of the city in that case (p. 511) :
“The appellants [city officers] contend that it is not necessary to procure a certificate of convenience and necessity for three reasons: first, that it is not necessary where a . . . municipality intends to construct a plant and generate electricity for its corporate needs; second, the city having commenced construction of its plant before there was in existence in the city a plant operated under an indeterminate permit . . . ; and third, that since the passage of the utility law the legislature has expressly authorized the building of the plant without a certificate of convenience and necessity. The last two propositions, we think, control this case, and the first need not be considered.”
Thus the proposition here at issue was not passed upon in either of the cases cited.
Central Wisconsin P. Co. v. Wisconsin Traction, L., H. & P. Co. 190 Wis. 557, 209 N. W. 755, is also cited to the same effect. Both parties in this suit were public utilities;
8. This we believe sufficiently covers all points raised by the respondent in defense of its proposed action, except the contention that as the law permits a private person or corporation in a municipality wherein there is a public utility operating under an indeterminate permit to furnish electrical service to himself or itself a municipality may do likewise.
To this it seems sufficient to say that municipalities do not necessarily have the same rights of property that individuals and private corporations have, or the same rights as to supplying electrical energy to its streets and public buildings that individuals and private corporations have to supply the needs of their property in that respect. A city is a creature of the state. It is the agent of the state. Milwaukee v. Raulf, 164 Wis. 172, 183, 159 N. W. 819. It has such powers as the state gives it. It has such property as the state permits it to acquire and such property rights as the state confers upon it. These rights may be modified or restricted as the state sees fit. Vested rights once given may not, perhaps, be taken away. At least the public utility law has been construed as not taking away from a municipality a right to maintain a municipal lighting plant where it was exercising such right prior to the enactment of that law. Neacy v. Milwaukee, supra; Wisconsin Traction, L., H. & P. Co. v. Menasha, supra. But the city of Beloit had no vested right to operate in the municipal field before the utilities law was enacted. As to cities which had not obtained such vested right, the state may restrict their rights to operate in that field as it sees fit. It has seen fit, as declared in the Chilton Case, to restrict their rights of operation in that field where an existing utility is so operating under an
By the Court. — The order of the circuit court is reversed, with direction to. enter an order sustaining the demurrer and for further proceedings according to law.-
A motion for a rehearing was denied, without costs, on June 5, 1934.
“In connection with the applications for certificates of convenience and necessity that have come before the Wisconsin Commission, I have often had occasion to investigate the effect upon the existing utility and customers as well as upon the municipality of dividing up its business with an additional plant. In these investigations I have almost invariably found that such a division of the business would have greatly reduced the net earnings of the existing plant, while at the same time it would have seriously increased the cost per unit of service to the public. Time will not permit us to go into details. But in one case where the city officials desired to erect a municipal plant for the purpose of lighting its streets and public buildings, it was found that the granting of this application would have decreased the revenues of the existing company by considerably more than twice as much as it would have decreased its expenses;