Town of Milton v. McGowan Water, Light & Power Co.

Doerfler, J. The only question involved in this case is whether the plaintiff has the power- to discontinue the proceedings before the railroad commission. [660] Ch. 393 of the Laws of 1917 creates sec. 1797m — 81a of the Statutes, which among other things provides: “Any municipality having heretofore determined to acquire an existing plant or any part of the equipment of a public utility as provided by sections 1797m — 1 to 1797m — ■ 109 of the statutes, may discontinue all proceedings to that end at any time prior to the final determination of compensation by the railroad commission by a resolution to that effect by its common council, commission council, village board or town board, provided that such resolution shall not be of force and effect until thirty days after the passage and publication.” A reading of the section referred to clearly discloses the intention of the legislature to provide for a discontinuance of proceedings for the acquirement of a public utility by a municipality, and that such proceedings for discontinuance are limited to- municipalities having prior to the enactment of said section determined to acquire an existing plant, etc. Sub. (22), sec. 4971, Stats., provides that “Whenever the word ‘heretofore’ occurs in any statute it shall be construed to mean any time previous to the day when such statute shall take effect.” With such legislative definition of the word “heretofore,” the meaning of sec. 1797m — 81a becomes clear, and no claim can successfully be maintained that such statute is involved in any ambiguity. The record does not disclose any attempt on the part of the municipality, prior to the time said sec. 1797m — 81a became operative, to acquire this utility, and we must therefore assume that no such prior attempt had been made. In the year 1919, by ch. 658,*the legislature amended sec. 1797m — 81a by adding thereto sub. 3, which reads as follows : “Upon the discontinuance of proceedings by the municipality no subsequent proceedings shall be instituted until at least four years shall have elapsed from the date of the discontinuance of the last prior proceeding.” ‘ The title to said ch. 658 of the Laws of 1919 is as follows: “An act to create subsection 3 of section 1797m — 81a [661] and to amend séctio'n 1797t — 12 of the statutes, relating to-fixing the interval between successive proceedings for municipal acquisition.” While it is true that, in the absence of any statutory provision showing a legislative intent to the contrary, a proceeding like this may be discontinued at any time before the right of the owners of the utility to compensation or damages has become absolute (20 Corp. Jur. 1077), the legislature, by the enactment of sec. 1797m — 81a, Stats., has definitely expressed an intent and has limited the right of the municipality to discontinue proceedings begun to acquire a public utility where the municipality has, prior to the enactment of the statute, determined to acquire the utility ; and sub. 3 of the statute must be construed in the light of the provisions of the balance of the statute. It can reasonably be assumed that prior to the enactment of the statute in question there existed municipalities which had made one or more attempts to- acquire a public utility and where the proceedings have either been discontinued prior to 1917 or thereafter; so that in the enactment of sub. 3 it becomes clear that it was the legislative intent to prohibit subsequent efforts to acquire a utility until the requisite statutory period shall have elapsed. There is sound reason both for limiting the power of discontinuance and the institution of new proceedings for the acquirement of-a utility. It is a matter of common knowledge that the acquiring of a utility by a municipality is connected with the expenditure of a great amount of labor and money, in procuring the proper survey, the appraisal, the hearings before the commission, and other proceedings incident thereto. Therefore we conclude that under the showing made in the instant case the proceedings cannot be discontinued. The order of the circuit court must therefore be reversed, with directions to dissolve the preliminary injunction. By the Court. — It is so ordered.