286 N.W. 588 | Wis. | 1939
This was an action begun on June 20, 1936, by Wisconsin Power Light Company, a Wisconsin corporation, plaintiff, to review certain orders of the defendant Public Service Commission of Wisconsin. On August 13, 1936, the village of Cambridge was made a party defendant pursuant to the order of the court. Plaintiff seeks no relief against said village. The action was brought to set aside an order of the commission dated September 10, 1935; also an order of said commission dated April 23, 1936, and to alter and amend each of said orders. From the judgment entered June 2, 1938, affirming the aforesaid orders as amended, the plaintiff appeals.
On April 3, 1934, the electors of the village of Cambridge voted in the affirmative on the following question:
"Shall the village of Cambridge acquire by purchase the electric plant and equipment actually used and useful for the convenience of the public now owned by the Wisconsin Power Light Company?"
A notice of the referendum election was published, and, in connection therewith, immediately following the referendum notice, the following was published pursuant to a resolution adopted by the village board:
"Whereas, the village board has this day at a regular and legal meeting thereof, by resolution duly adopted, resolved to submit to the electors of the village of Cambridge the following question:
"`Shall the village of Cambridge acquire by purchase the electric plant and equipment actually used and useful for the convenience of the public now owned by the Power Light Company.'
"And whereas the village board is of the opinion that it is advisable to inform the voters of said village as to what property in the opinion of the village board is used and useful, as that term is used, in the question to be submitted and which the village should acquire by these proceedings so that *61 the voters of this village may intelligently vote on this question;
"Now, therefore, be it resolved, that the property used and useful for the convenience of the public should include the electric distribution system owned by the Wisconsin Power Light Company and located within the village limits of the village of Cambridge, and in addition thereto the following property which is a part of and continuation of the village distribution system, the major portion of which is located in the village limits, to wit:
"That portion of the distribution system which extends beyond the village limits to the north and east and which is situated within one-quarter mile from the north and east boundary of the village limits of the village of Cambridge.
"Be it further resolved, that the village clerk be instructed to publish this resolution with the notice of the referendum election to be held at the annual spring election in said village on the third day of April, 1934. . . ."
The foregoing resolution was duly adopted by the village board on the 13th day of March, 1934. The referendum vote was one hundred fifty-seven for and ninety-two against the acquisition.
Notice of the result of the referendum election was given to the commission and to the plaintiff company. Thereafter, the Public Service Commission gave notice of a hearing upon the matter of just compensation to be paid for the property, and fixing the terms and conditions of purchase, and hearings were held in Madison, on July 23, November 13, 14, and 30, and December 1, 1934. On September 10, 1935, the Public Service Commission entered an order in which it found the fair and reasonable value of the property described in the order to be the sum of $25,000. The order provided for payment of $25,000 within four months from its date. Thereafter, plaintiff made application to the commission for a rehearing; the village of Cambridge also made application for a rehearing. The application on the part of the village, for a rehearing, is in part as follows:
"That said order is unlawful and unreasonable in that the property described in paragraph No. 3 of said order does not *62 include all of the property actually used and useful for the convenience of the public at Cambridge within the meaning of 196.57 of the statutes; that said order should also include as a part of the property to be acquired by the village of Cambridge that portion of the so-called feeder line includedwithin the village limits of said village where the same enters the village south and leaves the village on the east near Highway 12 for the reason that the same is a part of the distribution system within the village of Cambridge."
On October 8, 1935, an order was entered granting a rehearing. A further hearing was had on October 15, 1935, and on April 6, 1936. Following the rehearing, and on April 23, 1936, the commission entered an order adhering to its original order with respect to the property which it considered subject to acquisition, also with respect to the $25,000 just compensation. The order of April 23, 1936, amended the order of September 10, 1935, by providing that the payment of the just compensation fixed might be made within four months after the date of the order of April 23, 1936, and further provided that in the event of the commencement of an action by either party to set aside the order, the time of paying the just compensation was further extended to a date four months after final judgment affirming said order.
This action, which was commenced on June 20, 1936, to set aside the orders of the Public Service Commission, came on for trial before the court on June 9 and June 17, 1937. Additional testimony was taken in court and on August 3, 1937, the court entered an order that a copy of the evidence so taken upon the trial be transmitted to the Public Service Commission for further consideration by the commission. After the evidence taken in court had been transmitted to the commission, and while the matter was before the commission, plaintiff made certain requests, among them:
"That the commission find the just compensation to be paid for the taking of the property involved in this action as of a date as near as may be to the date of the order which *63 the commission may make altering and amending the order complained of; or, in the alternative, that the commission state the date as of which it fixes and determines just compensation . . . ."
Thereafter, the commission made a report to the court with reference to plaintiff's request for a specific finding with respect to the date as to which just compensation was determined, also with respect to plaintiff's request for specific findings as to other matters, and with respect to the adequacy of $25,000 as just compensation. In its report, with respect to the date of fixing just compensation, the commission said:
"As we view it, the acquisition of the plaintiff's property in the proceeding here involved is a purchase thereof pursuant to a contractual right under an option, which the village of Cambridge exercised when it determined to acquire the property in the manner specified by the statute. Considerable time usually elapses in all such acquisition proceedings between the exercise of the municipality's option to acquire the utility's property and the payment of the just compensation therefor. In this proceeding the municipality exercised its option on April 3, 1934.
"We think the just compensation in this case, so far as it relates to, or includes compensation for, property which was in existence on April 3, 1934, and will still be in existence when such just compensation is paid, should be the equivalent of the value of that property as that value was on or about April 3, 1934."
The commission made a new order on November 15, 1937, amending its former orders, and changing the amount of just compensation by providing that the company and the village might agree upon the amount and value of general equipment, materials, and supplies; that the company and the village might also agree upon the amount and value of net additions to or retirements from the property, and the time of payment of such just compensation; and that in case of failure of said parties to agree, the commission upon notice to the parties would determine the amount and value of such *64 general equipment, materials, and supplies, and net additions and retirements. No mention of general equipment or net additions had been made in the previous orders. It is this order of November 15, 1937, made by the commission after evidence taken in court had been transmitted to the commission, to which the judgment of the court is directed. The court by its judgment affirmed and approved the order of the Public Service Commission. Additional material facts will be stated in the opinion. We will approach the issues involved upon this appeal in the reverse order from which they are stated in the briefs of counsel. In logical sequence, the validity of the referendum election held on April 3, 1934, will be considered first because if the referendum is invalid there will be no occasion at this time to consider or decide the other issues.
The question submitted to the voters of Cambridge at the April 3, 1934, referendum was stated as follows:
"Shall the village of Cambridge acquire by purchase the electric plant and equipment actually used and useful for the convenience of the public now owned by the Wisconsin Power Light Company?"
This question is in proper legal form. It is clear and unambiguous. It contains the only subject matter upon the referendum ballot. The only contention made by the appellant relates to the resolution passed by the village board set out in the foregoing statement of facts, which resolution was published in the same newspaper which printed the required *65 notice of the referendum election and immediately following the official notice. Appellant contends that the voters of the village of Cambridge were misled by the publication of the resolution, and that they voted believing they had the right to determine what property was "used and useful for the convenience of the public." Appellant argues that the resolution, in effect, modified the question submitted to the electorate, and that the electors in fact voted upon the question as modified by the resolution. It is true that the village board by its resolution described the property used and useful to be the distribution system in the village and the distribution system one-quarter mile north of the village and east of the village. However, the village board had no power or jurisdiction to determine what property was used and useful for the convenience of the public. That was a matter for the Public Service Commission to determine. There is no showing that any voter was in fact misled by the publication of the resolution, or that he would have voted differently had the resolution not been published. In order to sustain appellant's contention we would have to assume that the voters of the village of Cambridge were misled by the contents and publication of the resolution, notwithstanding the fact that the question printed upon the referendum ballot was in proper legal form, clear and unambiguous. In the absence of a showing to the contrary, we must assume that the voters understood the question upon which they voted either in the affirmative or negative. So far as this issue is concerned, we must hold the election valid.
Appellant next contends that the order of the Public Service Commission fixing just compensation is invalid because it fixed the value as of April 3, 1934, the date of the referendum election. It appears that the commission's order of September 10, 1935, did fix the value as of April 3, 1934; also in the order on rehearing, dated April 23, 1936, the commission fixed the value as of April 3, 1934; and again *66
in the order made after testimony taken in court had been transmitted to the commission, dated November 15, 1937, the value was taken as of April 3, 1934. The order of November 15, 1937, supersedes the prior orders, and, in addition to fixing the value of the property at the sum of $25,000, the order provided for an additional sum that might be determined later to be the value of the general equipment and supplies, and further modified the amount of just compensation by the addition or subtraction of such sum as might be similarly determined to be the value of the net additions to or net retirements from the property. In its complaint in this action, the plaintiff alleges that prices of materials similar to those included in the electric-utility property at Cambridge have appreciably advanced since the 1934 order was entered, and that the cost of labor entering into the reproduction cost new of said property has likewise increased since the 1934 order. These allegations are admitted in the answer of the Public Service Commission. Charts showing price trends of cedar poles, copper-wire base, transformers, meters, and labor were offered and received in evidence. The per cent of increase between September 1, 1934, and May 15, 1937, was
Appellant next contends that the order of the commission is unlawful for the reason that the order for which the award *67 is made does not include all of the electric-utility property actually used and useful for the convenience of the public, but includes a part only of such property. Its contention in this regard is because of the exclusion of the following items of property as being "used and useful:"
(1) The main feeder line;
(2) Voltage-regulator equipment; and
(3) Lines extending to the east from the village of Cambridge around Lake Ripley and north to London. Lake Ripley is a summer resort. London is a small unincorporated community located about three miles north from Cambridge. Normally, both communities would be given service from Cambridge. Cambridge is the trading place for both communities. The lines running out to Lake Ripley and to London are the same kind of lines that serve in the village of Cambridge; they are 6,900-volt lines; same kind of wire; same kind of poles; and same voltage as at Cambridge. The property described in the commission's order includes the property of the plaintiff company in the village of Cambridge except it excludes that portion of the three-phase 6,900-volt transmission line which is located within the village limits but extends beyond the village limits, also voltage-regulator equipment and lines referred to in No. (3) above. The line extends east near to Lake Ripley and north to the unincorporated village of London. Cambridge is served from a line that runs north from Edgerton to Albion, Rockdale, and Cambridge; it is a 6,900-volt line, and service is rendered directly to the people in Cambridge through transformers on poles carrying this line to the customers in Cambridge. There is no substation or step-down station in Cambridge. The commission's order includes as property used and useful, the poles which carry this 6,900-volt line, anchors, guys, crossarms, insulators, wires, transformers, meters, street-lighting equipment, but excludes the 6,900-volt line on these poles. It appears that the insulators, transformers, meters, street-lighting equipment, and services are all connected with *68
this 6,900-volt line. Clearly, it is property used and useful for the convenience of the public. It is this main feeder line that the village officials all through the proceedings have insisted on acquiring as being actually used and useful for the convenience of the public. Of course, their insistence would not be controlling upon the action of the commission. However, it does indicate to some extent that the feeder line, voltage-regulator equipment, and the line leading out to Lake Ripley and north to London, constituted a single unit. In the second Edgerton Case, supra, the order of the Public Service Commission included as "property used and useful" a transmission line from a substation located about one and one-half miles outside of the city of Edgerton to the city limits of Edgerton. See page 408. In Wisconsin P. L.Co. v. Public Service Comm. (first Edgerton Case)
"Are the rural lines extending outside the city used and useful for furnishing power within the city? It is to be remembered that these lines are physical extensions of lines originating at the city substation and serving the city. If these lines are cut at the city boundary, those rural customers now served will be left without power. As a business proposition, the ability to sell power to the rural customers may well be of some advantage in the operation of the city distribution plant. These lines are in that sense used and useful for furnishing power within the city. Furthermore, no voter, informed of the facts, would think of these rural lines as anything but a portion of the utility entity which is used and useful for furnishing power within the city. In other words, the question to the voter was, Shall the city acquire the power system which serves it? Such a question would necessarily include within the system integral parts which happened to serve others."
Further, the court said at page 291:
"We agree with plaintiff that the legislature unquestionably had in mind that if the municipality took over this electrical *69 plant, — `it should step in the shoes of the public utility owning the property and continue to furnish service not merely to the inhabitants within the city limits, but also to the people living near by but outside the city limits. If such were not the case, the acquisition by the city of only that part of the property which is located within the city, would deprive the people just outside the city of electrical service. . . . Undoubtedly, that is the reason why sec. 196.57 of the statutes contains the provision that the owner of the property consents to a future purchase of its property actually used and useful for the convenience of the public by the municipality in which the major part of it is situate.'"
The commission apparently excluded the feeder line within the village and the voltage-regulator equipment because the feeder line was used to serve other communities. In its order of April 23, 1936, the commission said:
"The essential fact, as we view it, which prevents any portion of this transmission line from being subject to acquisition by the village of Cambridge is the fact that it is used and useful by the Wisconsin Power Light Company in the service of other communities and under other indeterminate permits than at Cambridge."
Sec. 196.57, Stats., provides:
"Any public utility accepting or operating under any license, permit or franchise granted after July 11, 1907, shall by acceptance of such indeterminate permit be deemed to have consented to a future purchase of its property actually used and useful for the convenience of the public by the municipality in which the major part of it is situate for the compensation and under the terms and conditions determined by the commission, and shall thereby be deemed to have waived the right of requiring the necessity of such taking to be established by the verdict of a jury, and to have waived all other remedies and rights relative to condemnation, except such rights and remedies as are provided in chapters 196 and 197."
This statute is clear. All of the plaintiff's property and equipment described in the commission's order — that is the property and equipment included and the property excluded *70
by the order — was all "actually used and useful for the convenience of the public." It is obvious that the main feeder line and voltage-regulator equipment located within the village of Cambridge are as much a part of the Cambridge utility unit as are the poles which carry the feeder line, the anchors, guys, crossarms, insulators, wires, transformers, meters, and street-lighting equipment, all actually used and useful for the convenience of the public. There is no other utility in Cambridge or vicinity, and the Cambridge utility served the rural patrons in the vicinity of Lake Ripley and north to the unincorporated village of London and the vicinity of London. Under the decision of this court inWisconsin P. L. Co. v. Public Service Comm. (BrooklynCase)
By the Court. — The judgment appealed from is reversed, and cause remanded with directions to the circuit court to enter judgment setting aside the order and for further proceedings according to law. *71
