State ex rel. Leisk v. Common Council of Wauwatosa

Cassoday, O. J. It is stipulated in writing, and made a part of the record in this case, and that the same “shall be conclusive upon the parties” in this action, that at the time of the application for the passage of the ordinance in question — July 7, 1903 — the defendant the Milwaukee Light Heat & Traction Company was the owner of all street railway franchises and privileges then existing, or which had at any time been granted in the territory contained within the boundaries of the city of Wauwatosa by either the city of Wauwatosa, the village of Wauwatosa, or the town of Wauwatosa ; that the said franchise rights and pi’ivileges so existing in said city were” a franchise granted by the town board of Wauwatosa May 11, 1891, to expire May 11, 1941, a franchise granted by the village of Wauwatosa July 2, 1896, to expiie May 11, 1941, and a franchise granted by the city of Wauwatosa September 5, 1899, to expire May 11, 1941. [457] '“(3) That, notwithstanding any finding asked by appellant and refused by the trial court, no question of. the validity or ■ownership of the above franchises shall be raised by the appellant on the argument on this appeal, and that as to the question herein stipulated the findings of the trial court are to be ■considered as verities. (4) That no question shall be raised by appellants on this appeal in their brief or oral argument , . . excepting the right to a writ of mandamus depending on the question of whether or not the franchise ordinance of „ . . common council of August 4, 1903, ... is or is not an extension of any existing line or system within the meaning of the provision contained in the last part of sec. 1, ch. 387, Laws of 1903.” The section of the statute thus mentioned, and upon the construction of which it is thus conceded the base must turn, declares that: “From and after the passage of this act no ordinance for granting either a street railroad . . . franchise, or for the extension of the life of any such existing franchise, shall be operative in any city in this state until after sixty days from the date of its passage, and if in any such case and during said period of sixty days a number of the qualified voters, equal to twenty per cent, of the total number of votes cast at the last preceding election in such city, shall demand that the ordinance be submitted to a direct vote of all the voters therein, such ordinance shall not be valid or operative until it shall have been so submitted and approved by a majority of those having voted upon it. The provisions of this section shall not apply to the extension of any existing line or system upon any street or -highway, if the term of such extension expires at the same time as the franchise of which it is a part.” Sec. 1, ch. 387, Laws of 1903. As indicated in the statement of facts, all street railways constructed or operated in the city of Wauwatosa August 4, 1903, were owned by the defendant Milwaukee Light, Heat & Traction Company, and “were operated under a single management from the same power plants, and . . . constituted and were operated as one system of street railways in said [458] city, with transfer privileges given, accepted, and used, by-means of which passengers were transported from any street-crossing point on any portion of said lines to any other street-crossing point on any other portion of said lines within said city for a single fare.” Moreover, the ordinance 'of August 4, 1903, by its terms, is to expire at the same time as the other franchises mentioned — May 11, 1941. The question recurs whether, in the language of the stipulation, that ordinance “is or is not an extension of any existing line or system within the meaning of the provision contained in the last part of sec. 1, ch. 387, Laws of 1903.” The section first provides, in effect, that “no ordinance for granting either a street railroad . . . franchise, or for the-extension of the life of any such existing franchise, shall be operative in any city” until “submitted to a direct vote,” as prescribed therein, if demanded. This was manifestly intended to cover two classes of cases — one where there is an original grant of such franchise, and the other where there is-the extension of the life of an existing franchise, and hence-applies both to the original grant of such franchise and to the extension of the life of an existing franchise. Obviously,, the ordinance in question is not the original grant of such franchise, and hence that may be dismissed from consideration. Nor is it the extension of the life of an existing franchise. The life of all such existing franchises, by their express terms, is to expire May 11, 1941, and the ordinance-in question, by its express terms, is to expire at the same time. The last part of the section expressly declares that “if,” as in the case at bar, “the term of such extension expires at the same time as the franchise of which it is a part,” then “the-provisions of the section” requiring “that the ordinance be submitted to a direct vote,” as therein prescribed, “shall not apply to the extension of any existing line or system upon any street or highway.” The life of a franchise only continues during the period of its existence. The section con [459] templates tbe extension of any existing line or system of street railways upon other streets and highways without any extension of the life of an existing franchise. In other words, the act contemplates an extension of such system in space as well as time. Since the ordinance in question was not the original grant of a franchise, nor an extension of the life o'f an existing franchise, it is obvious that it did not come within the provision of the section requiring the submission of the same “to a direct vote” as therein prescribed. On the contrary, that ordinance merely extended the lines and system of street railroad then existing in the city of Wauwatosa upon the other streets and highways of that city, as mentioned in the record, and hence came within the last clause of the section. In other words, the lines and system of street railways existing in the city when the ordinance was adopted were thereby extended to other streets and highways as therein mentioned. Such is the plain meaning of the statute in question. This makes it unnecessary to consider other questions discussed by counsel. By the Gourt. — The judgment of the circuit court is affirmed.