City of Oshkosh v. Eastern Wisconsin Electric Co.

Eschweiler, J. The defendant insists, first, that the plaintiff then had no lawful authority to impose as a condition for the privilege granted by the franchise of Novem [88] ber, 1903, the requirement of the promise by the street railway company to pay the $35,000 as in said ordinance contained and that the stipulation therefor was consequently null and void; and secondly, that by its surrender of the franchise here in question, together with all other franchises that it then held in March, 1917, and the procuring thereby by operation of law an indeterminate permit, by virtue of sec. 1797i — 3, Stats., such condition in the franchise, even if originally valid and binding, became null and void. At the time of the granting and accepting of the franchise in question the final clause of sec. 1863, which is a statute relating to the extension of the lines of interurban railways into adjoining municipalities, read as follows: “In any. city or village the consent of the common council or board of trustees shall be given by ordinance, and upon such terms and subject to such rules and regulations and the payment of such license fees as the common council or board may from time to time prescribe; provided, that the common council or board shall not alter or change the license fee prescribed for such corporation, oftener than once in each five years.” It was within the power of the common council to absolutely withhold from granting any privilege to such interurban railway to enter upon and use the streets of said city. Or in case plaintiff elected to grant such permission, it might incorporate with the terms of such permission or franchise certain terms, rules, and regulations. Having incorporated such, it then became optional with the interurban railway to accept or reject such ordinance as it was then adopted and. presented. The city in this instance did incorporate in such franchise a term requiring the payment of $35,000 in thirty-, five annual instalments, and it was within the power delegated to it by the section above quoted so to do. Having been expressly accepted by the street- railway, such condition became as much a part of the ordinance as did the privilege exercised thereunder by the railway company in using the streets of said city. This conclusion is clearly within the [89] former decisions of this court. Manitowoc v. Manitowoc & N. T. Co. 145 Wis. 13, 26, 129 N. W. 925; State ex rel. West Allis v. Milwaukee L., H. & T. Co. 166 Wis. 178, 164 N. W. 837; Superior v. Duluth St. R. Co. 166 Wis. 487, 165 N. W. 1081. Upon the pleadings as they stand we cannot now say as a matter of law that it clearly appears or is to be presumed that the provision of the franchise of November, 1903, and specifically included in the written acceptance of January, 1904, for the annual payment of $1,000, was a term or condition inserted as a revenue-producing measure rather than as a provision for actual compensation for the wear and tear on the streets and bridges of the city by such use. Such' being the position, this provision cannot be treated as one •beyond the power of the common council to lawfully require as a condition of the franchise becoming operative on the ground asserted by appellant, that the authority to tax or license such railways for revenue had been taken away by prior legislation, as was held to be the case with reference to the license fees involved in the cases of Milwaukee v. Milwaukee E. R. & L. Co. 147 Wis. 458, 133 N. W. 593, and Milwaukee E. R. & L. Co. v. Milwaukee, 167 Wis. 384, 167 N. W. 428. Upon its second proposition defendant strongly urges that, having duly surrendered all the rights and privileges it acquired as successor to the original grantee of the franchise of 1903 and having received by such surrender the indeterminate permit authorized by the statute, it thereby became absolved from any and all obligations that may have theretofore existed on its part or that of its predecessor to the city of Oshkosh under the said franchise. The surrender of its franchise in this case was made by the defendant under sec. 1797¡f — 3, Stats., the final clause whereof is as follows: “The filing of such declaration shall be deemed a waiver by such street railway company of the right to insist upon [90] the fulfilment of any contract theretofore entered into relating to any rate, fare, charge or service regulated by sections 1797 — 1 to 1797 — 38 of the statutes, as amended.” It insists that this surrender clause just above quoted under which it acted in the instant case is substantially the same as the surrender clause in sec. 1797m — 77, being the one under which the public utility furnishing gas and electricity to the city of La Crosse surrendered its charter, and that therefore the situation here is ruled in favor of the defendant’s contention by the decision involving the surrender in the La Crosse case (La Crosse v. La Crosse G. & E. Co. 145 Wis. 408, 130 N. W. 530). That case, how•ever, dealt with what was held to be a public-revenue feature of the former franchise so surrendered by the La Crosse company and not a franchise provision such as we have already determined in this case is here present. The attempted analogy, therefore, between the La Crosse Case and this must fail in that regard. Furthermore, the substantial difference between the franchise held by the public utility such as the gas company in that case involved obtained under sec. 1780& as it stood at the time of the franchise to such public utility, and a franchise granted under the section here involved (sec. 1863), is expressly and carefully pointed out in the La Crosse Case and also by its express reference to the case of Manitowoc v. Manitowoc & N. T. Co., found also in 145 Wis. 13, 129 N. W. 925. We shall not restate here what appears in those two cases on this same subject. This case is controlled by the Mani-tozvoc Case, supra, and not by the La Crosse Case. The same want of analogy in the instant case with the La Crosse Case is equally apparent from a consideration of the decision of this court in Wisconsin T., L., H. & P. Co. v. Menasha, 157 Wis. 1, 145 N. W. 231, also relied upon by appellant. What has just been said with reference to the La Crosse Case applies equally as well to the Menasha Case. [91] It follows that the circuit court was right in sustaining the plaintiff’s demurrer to defendant’s amended answer. By the Court. — Order affirmed, and action remanded for further proceedings according to law.