State ex rel. Kenosha Gas & Electric Co. v. Kenosha Electric Railway Co.

The following opinions were filed January 10, 1911: MaRshaul, J. The arguments of counsel seem to take a needlessly wide range. They extend to and include important matters which, it is thought, are not within the issues raised by the pleadings. However much counsel may wish to have such matters considered and decided, the court cannot well accommodate them. It is appropriate, and sometimes advisable, to decide each of several major propositions, and from each of several efficient viewpoints even where the result can as certainly be reached by the decision of a single question upon a single ground. But it will hardly do to go so far as to decide matters not within the issues. These observations will render it unnecessary to give further reasons why some questions, industriously and ably presented by counsel, are not specially herein mentioned. Do rights, or any of them, claimed by appellant under the — 342 — ordinance of June 7, 1909, conflict with those possessed by respondent under its ordinances mentioned in tbe complaint, and tbe perpetuating “indeterminate permit,” so called, upon wbicb it relies, assuming for now, tbat tbe legislation, in regard to sucb permit, in all respects, is valid, and tbat sucb permit affords to respondent all it purports to ? Counsel for appellant, saving all questions witbin tbe assumption referred to, seem to concede tbat there is no conflict as regards tbe generation and transmission of electric current for beat and power. Tbat is based on tbe theory tbat in tbe granting clause of tbe ordinance under wbicb appellant claims tbe right to use tbe street for tbe transmission of electric current “for tbe furnishing of electric beat and power” is expressly included, while, if tbat feature exists at all in tbe ordinances surrendered by respondent for its indeterminate permit, it is not found otherwise than in tbe words “transmission of electricity upon, over, through, under and in tbe streets, lanes, alleys and public grounds of tbe city of Kenosha, and to put in place and furnish electric lights for public and private lighting,” etc. Tbe idea of counsel is, tbat tbe indeterminate permit necessarily coincides with tbe franchise ordinances surrendered; tbat the language above quoted does not include a right as to beat and power, and, therefore, tbat tbe permit does not, and so, to tbat extent, appellant’s ordinance does not, in any event, conflict therewith. Admitting, for tbe purposes of tbe case, tbat, on tbe facts stated in tbe complaint, tbe scope of tbe permit is referable to tbat of tbe ordinances given in exchange therefor, we are still far from conceding tbat tbe result follows wbicb counsel claim. Tbat tbe language under consideration is not free from ambiguity, is quite evident. Tbat is indicated by tbe fact tbat eminent counsel for tbe respective parties get a different idea therefrom. Another indication is in tbe fact tbat, — 343 — whereas as matter of common knowledge when the ordinances were passed, distribution of electricity from central stations for power, was general, it would he highly unreasonable to suppose the grantor and grantee of respondent’s franchise did not intend to cover that important feature. There is a third indication in the fact, apparent from the complaint, that respondent’s business, under the ordinances, has been conducted for years as including the transmission of electric current for all lawful purposes; and, the ordinance being many years old and the business in the field of selling electric current for power must have become considerable, a pretty strong case of practical construction is presented. The ambiguity is pretty clearly removed by language following the words of grant. That language provides that, in case of any “other corporation organized for the supplying of electricity for light or power” desiring to use respondent’s poles, it shall be permitted to do so on specified terms and conditions. Such language points, quite unmistakably, to the preceding part of the ordinance as having been designed to afford respondent a franchise privilege broad enough to include the power feature. The words of grant to respondent, in the light of all the circumstances, should be construed to include the ordinary heat and power features of such franchises, and, as respondent’s counsel claim, the transmission of electric current for all lawful purposes. The words, “use all public grounds,” and in effect, in the ordinary way, followed by the words, “for the transmission of electricity upon, over, through, under and in the streets, lanes, alleys and public grounds,” are as broad as the purposes for which electricity is commercially transmitted. What follows, conjunctively, are not words of limitation or explanation, but additional words of grant. “And to put in place and furnish lights for public and private lighting,” refers solely to lighting characterized, — 344 — to some extent, by placing and caring for lamps in public territory. Tbe city could not confer authority as to placing and furnishing lights for private purposes in private places, and, obviously, none was intended to be conferred. The purpose was to afford the ordinary power to use the street and public places in the ordinary way, for the transmission of electricity for commercial purposes, leaving all matters of use thereof upon private grounds for private purposes, to private treaty; but adding a clause respecting the location and operation of lamps so far as the public was in any wise concerned. So the situation is this: The rights, in form, of the two parties under their respective public grants, referable to the ordinances and permit referred to, are substantially the same. The purpose of the action is to challenge the right of appellant, under the ordinance of June 7, 1909, to occupy any part of the field covered by respondent’s permit, measured by the scope of the surrendered franchises. No other claim of right by appellant is referred to in the complaint or involved in the action. If it possesses, as against respondent, any right under such ordinance, to that extent it must prevail. If it does not, it cannot, regardless of whatever rights it may have otherwise. It is claimed, on behalf of appellant, that it has, by force of sec. 1780&, Stats. (1898), a franchise-directly from the state, since such section provides that, “Any corporation organized under general or special law for the purposes of furnishing-heat, light, power or signals by electricity may, with the consent of and in the manner agreed upon with the authorities of any city or village, use any street, alley, lane, park, or public ground, for” such purposes upon specified conditions. That is quite an old statute. It does not cut any figure in this case if eh. 499, Laws of 1907, as amended by ch. 180, Laws of 1909, relating to the granting of indeterminate permits in consideration of surrender of existing licenses, per — 345 — mits, or franchises, and the rights of the parties and powers ■of. a city where such an indeterminate permit exists, — is valid, and respondent was in full occupancy of the field in controversy before it was attempted to confer rights on appellant by the ordinance of June 7, 1909. What effect such section might have under other conditions is beside this case. There is no question but what respondent, May 28, 1909, ■complied with the law of 1907, as amended by that of 1909, and thereby became entitled to all the benefit thereof as to disability of the city of Kenosha to interfere with its monopoly.' The logic by which effect is claimed for the ordinance of June 7, 1909, antedating May 28th of that year, does not appeal to us with sufficient persuasion to call for extended discussion. The ordinance necessarily took effect, so far as it took effect at all, according to the provisions of the city charter, not by contract. There is no provision in the charter whereby retroactive effect could be given by contract to an ordinance. No attempt to do so is disclosed by the ordinance itself. Furthermore, we do not find it claimed in the answer that appellant has, under its ordinance, any rights antedating the passage thereof. Such claim as appellant makes of right to otherwise use the streets for the purposes in controversy, is not material because not a defense to an action having for its sole purpose that of ousting it from the alleged void franchise of June 7, 1909. The public utility law, in form, in unmistakable terms disabled the city of Kenosha from making such a grant as that in question after respondent’s indeterminate permit took effect. It provides that: “No Icense, permit or franchise shall be granted to any person, copartnership or corporation to own, operate, manage or control any plant or equipment for the production, transmission, delivery or furnishing of heat, light, water or power in any municipality where there is in operation under an indeterminate permit as provided in this act a public utility en — 346 — gaged in. similar service witbout first securing from tbe commission a declaration after a public bearing of all parties interested, that public convenience and necessity require sucb second public utility.” [Sec. 1797m — 74, Stats.: Laws of 1907, cb. 499.] That is plain. Tbe purpose of it is obvious. Tbe intent was to give tbe bolder of an indeterminate permit, witbin tbe scope thereof, a monopoly, so long as tbe convenience and necessities of tbe public should be reasonably satisfied, yet to secure to tbe public tbe benefit of tbe monopoly in excess of a fair return upon tbe investment, under proper administration, by insuring to tbe consumers tbe best practicable service at tbe lowest practicable cost, and to that end prohibit, conditionally, tbe granting of just sucb franchises as tbe one challenged in this case in tbe circumstances under which tbe ordinance of June 7, 1909, was passed. Counsel for appellant reply to tbe last foregoing by contending that the provision of tbe public utility law creating a municipal disability to grant sucb a franchise as that attempted to be conferred on appellant, witbout tbe applicant therefor first obtaining a certificate of convenience and necessity as required, is unconstitutional; that tbe feature requiring tbe railroad commission to pass on tbe question of convenience and necessity, was an attempt to grant to it legislative powers. True, tbe legislature cannot empower tbe railroad commission to exercise legislative or judicial power; but it may clothe it with authority to administer a law requiring tbe ascertainment of facts in order to determine whether tbe law applies, and if so, bow, to situations as they arise. Tbe administrative power includes, necessarily, power to determine tbe facts necessary to application of tbe law. That is a familiar principle governing numerous instances of grant of quasi-judicial and gmsi-legislative power. They do not fall — 347 — within the field of that strictly judicial or legislative power which is undelegable. It was said in State ex rel. Minneapolis, St. P. & S. S. M. R. Co. v. R. R. Comm. 137 Wis. 80, 117 N. W. 846, with reference to the scope of another feature of the public utility law of the nature of that in question: “The seat of original power is the legislature. It cannot legitimately delegate it. It can properly clothe a commission with capacity to determine whether corporate rights created by the legislature are exercisable, that depending upon the existence of facts satisfying legal conditions precedent in that regard, and give to the corporation invoking its jurisdiction evidence of its determination.” There is the spirit of the doctrine within which the legislation in question is located. Here the legislature provided, in effect, that in case of there existing under an indeterminate permit, a right of a corporation to enjoy such privileges as are involved in this case, no other permit or franchise shall be granted to any one to invade, in whole or in part, the same field, except upon a specified condition involving the ascertainment of a fact. That plainly created, conditionally, municipal disability, and to that extent amended all conflicting existing laws. It was the mere ascertainment of the fact that was delegated to the commission. The prohibition of the exercise of power, waiting upon such ascertainment, was of legislative creation. The mere administrative labor of ascertaining the fact, is not legislative power at all in the undelegable sense. Such administrative feature does not involve any element of expediency or legislative discretion, but only the judgment and discretion which any person or body commonly exercises to ascertain whether a given situation satisfies the calls of a rule prescribed by higher authority to a lower for guidance and enforcement. State ex rel. Adams v. Burdge, 95 Wis. 390 — 348 — 402, 70 N. W. 347; State ex rel. Milwaukee Med. Coll. v. Chittenden, 127 Wis. 468, 107 N. W. 500; State ex rel. Ellis v. Thorne, 112 Wis. 81, 87 N. W. 797. There is no other question which needs attention. The logic of our reasoning is that the order appealed from is right .and must be affirmed. By the Court. — So ordered.