City of La Crosse v. Wisconsin-Minnesota Light & Power Co.

Eschweiler, J. The first cause of action in the complaint fails to allege when the established rates, declared to be legal, were made, prior to or after October. 8, 1920; and it appearing as a conceded fact by the demurrer that an unreasonable and excessive rate had been charged and collected, there would be stated a good cause of action under the recent ruling of this court in Waukesha G. & E. Co. v. Waukesha M. Co. 175 Wis. 420, 184 N. W. 702, as an action brought to redress a past wrong or grievance by the defendant utility. To so pass on this matter would result in but an idle formality and the mere returning of the record for a future presentation, by amended complaint or answer, of the undisputed facts. The parties hereto evi [154] dently submitted it to .the trial court and have submitted it here upon a more complete state of facts than appears in the complaint, and we shall therefore dispose of it upon all of the conceded facts as they were, in large measure, before us in the cases of Eau Claire and others against this defendant (178 Wis. 207, 189 N. W. 476) and as they now are presented in the briefs in this case. The railroad commission on October 9, 1920, made an order, upon defendant’s application, increasing the rates that might be charged to the consumers in a large number of Wisconsin municipalities including the plaintiff. Feeling aggrieved by such order, three municipalities and no more commenced separate actions in the circuit court for Dane county to review such order, and such actions by the cities of Eau Claire, Chippewa Falls, and Menomonie respectively were, by consent, heard together in said circuit court and afterwards on appeal here. The circuit court reversed the order of the commission upon certain grounds and vacated and set aside such order., and further directed that the record be remanded to the railroad commission and the controversy be recommitted to such commission for such further proceedings as may. be required to finally dispose of the same. Upon appeal to. this court the several judgments of the circuit court were affirmed on the ground that the commission, in fixing the rates, failed to recognize the individual municipality as a unit and for that reason proceeded upon an erroneous fundamental basis. Upon the situation as thus outlined the demurrers to the complaint here and to the several causes of action attempted to be set forth therein were properly sustained. First and foremost because the controversy between the plaintiff, the other municipalities, and the defendant utility present questions to be first disposed of by the railroad commission before resort can be had to such action as this. Again, the particular controversy concerning the rates to [155] be charged by the defendant to the plaintiff and the other municipalities was expressly remanded by the Dane county circuit court to the railroad commission for further proceedings, is still there pending, and must be taken up and-disposed of by proper proceedings there. Furthermore, the plaintiff here was not a party to the action brought by the cities of Eau Claire, Chippewa Falls, and Menomonie to review the order of October, 1920, and cannot rely upon such judgment or its affirmance in this court as a proper foundation for either of its alleged causes of action here. The determination in that case that the rates fixed by the October, 1920, order for Eau Claire, Chippewa Falls, and Menomonie were predicated upon an improper basis and were unreasonable because excessive to those cities, is -not an adjudication that such order fixed an unreasonable, because excessive, rate as against the plaintiff. It being clear, therefore, that plaintiff cannot, upon the undisputed facts, properly maintain either cause of action, the decision of the trial court in sustaining the demurrers must be upheld. By the Court.- — Order affirmed.