Central Wisconsin Power Co. v. Wisconsin Traction, Light, Heat & Power Co.

Rosenberry, J. Although the plaintiff was authorized to construct such lines upon the streets in the city of Clinton-ville as might be required to enable the plaintiff to furnish electrical service to the Four Wheel Drive and to the Topp-Stewart Tractor Company, it has never exercised that power, and the court found that such authority had never been approved by the railroad commission as a division of the service field in the city of Clintonville. That element therefore drops out of consideration. It is the contention of the plaintiff that under the terms of the ordinance authorizing the plaintiff to construct such lines upon the streets in the city of Clintonville as might be necessary to deliver the electrical energy to be furnished by it to the electric municipal utility of the city, the plaintiff acquired an indeterminate permit, it having in that respect complied with the terms of the ordinance; that such indeterminate permit gives it the exclusive right to furnish electrical energy to the city of Clintonville and that an existing indeterminate permit can be terminated only in the manner provided by statute; that the indeterminate permit of the plaintiff not having been terminated, the exclusive right of the plaintiff to furnish the city of Clintonville with electrical energy continues, and the contract by which the defendant company agrees to furnish and the city of Clinton-ville agrees to accept electrical energy from the defendant — 566 — is an unwarrantable interference therewith and invasion of the plaintiff’s rights which will be protected in a court of equity. It is further contended that the defendant has no right to furnish electrical energy to the city of Clintonville because it has not obtained a certificate of convenience and necessity as required by the terms of sec. 196.50, Stats. Both the plaintiff and the defendant are public .utilities. As already indicated, the fundamental question in this case is, Has the plaintiff, under the facts and circumstances set out in the findings, an indeterminate permit? The term “indeterminate permit” (sub. (5), sec. 196.01, Stats.) is defined as follows: “The term ‘indeterminate permit’ . . . shall'mean and embrace every grant, directly or indirectly, from the state, to any corporation, company, individual, association of individuals, their lessees, trustees or receivers appointed by any court whatsoever, of power, right or privilege to own, operate, manage or control any plant or equipment or any part of a plant or equipment within this state for the production, transmission, delivery or furnishing of heat, light, water or power, either directly or indirectly, to or for the public, which shall continue in force until such time as the municipality shall exercise its option to purchase as provided in sections 196.01 to 197.10, inclusive, or until it shall be otherwise terminated according to law.” The plaintiff had no grant of privilege directly from the state. Such privilege as it had it enjoyed under the ordinance referred to in the findings .of fact. By the terms of this ordinance the predecessors of the plaintiff were “granted and vested with the franchise, permit, and privileges to use the streets, alleys, and public ways now existing, or which may hereafter be acquired or laid out in the city of Clinton-ville, for the purpose of bringing into the city and delivering to said city of Clintonville electricity for light, heat, power, and other purposes for which electricity may be used, to be distributed by the city in public service,” etc. — 567 — Sec. 4 of the ordinance provides that the franchise and privileges granted by the ordinance “shall be determined by the life of a contract entered into by and between Clinton-ville Power Company and the city of Clintonville on the 7th day of January, 1919.” The city of Clintonville had, prior to the time of' entering into the contract, maintained its own plant for the generation of electrical energy. Language could hardly make clearer the intention of the parties, which was that the plaintiff should deliver to the city, a public utility, electrical energy to be distributed by the city to the consumers, and for the purpose of delivering such energy the. plaintiff was authorized to erect and maintain the necessary electrical equipment in the streets of the city. Was this a grant of power from the city as agent of the state to furnish light, heat, and power for the public either directly or indirectly? Manifestly, the plaintiff dealt with the public in no respect whatever. If it can be said under such an arrangement as was here entered into between the city of Clintonville and the plaintiff that the plaintiff furnished light, heat, and power to the public indirectly, that would be equally true of a coal dealer who erected a coal chute for the purpose of delivering coal to the generating plant owned by the city. The statute expressly declares that a city owning and operating an electrical plant such as the city of Clintonville owned and operated is a public utility, so that wTe have in this case one public utility dealing with another. In making the contract the city acted in its proprietary capacity. In its governmental capacity, by the adoption of the ordinance it permitted the plaintiff to use the streets of the city for the purpose of carrying out its contract with the city as a proprietor. It did not thereby grant any franchise to the plaintiff to serve the public, but reserved that function to itself. The term “public utility” is defined in the same section in which “indeterminate permit” is defined. The relevant — 568 — part of the definition of the term “public utility” is as follows: “It shall embrace every corporation ... . that now or hereafter may own, operate, manage, or control any plant or equipment or any part of a plant or equipment within the state, for the conveyance of telephone messages or for the production, transmission, delivery, or furnishing of heat, light, water, or power either directly or indirectly to or for the public. ...” The two things are defined, as will be seen, in almost identical terms. Furnishing heat, light, or power to the public makes the company furnishing it a public utility; a franchise given to a public utility to furnish heat, light, and power to the public is an indeterminate permit. The plaintiff did not deal with the public directly or indirectly. It dealt with the city in its proprietary capacity. In Chippewa Power Co. v. Railroad Comm. 188 Wis. 246, 205 N. W. 900, it was held that a corporation which leased its property and equipment to a public utility for the purpose of enabling the utility to furnish light, heat, or power to the public was not a utility. The mere leasing of its power to a utility was not furnishing heat, light, or power to the public. That case is decisive of the issues in this case. A public utility which has a contract with another public utility to furnish electrical energy which the second utility distributes to the public is not furnishing it to the public so as to make its use of the streets for the purpose of delivering the energy an indeterminate permit. It is quite apparent that the plaintiff did not regard its permit to occupy the streets of the city of Clintonville for the time and purpose specified as an indeterminate permit, for it did not apply for a certificate of convenience and necessity under the provisions of sec. 196.50, and its occupancy of the streets of the city of Clintonville without such certificate, if the grant amounted to an indeterminate permit, was in violation of positive statute. The plaintiff is here claiming that the defendant utility — 569 — cannot be permitted to do the very thing the plaintiff did until the defendant utility first procures a certificate of convenience and necessity.' If that is a sound argument it is as good in one case as in the other. It is also to be noted that if the permit to occupy the streets in the city of Clintonville amounted to an indeterminate permit there are two mutually exclusive indeterminate permits in operation within the corporate limits of that municipality at the same time, for municipalities are brought within the terms of the indeterminate permit provision of the public utility law as are private corporations. Although the city of Clintonville owned and operated its own generating plant, there was no attempt made to divide the field as provided in sub. (5) of sec. 197.01. A powerful argument is made here to the effect that if it be held that the plaintiff, under the circumstances disclosed by the statement of facts, has no indeterminate permit, the element of competition will be reintroduced into the public utility field with serious consequences to the public and the utilities. If we were sitting as members of the legislative branch of the government, these arguments would furnish much food for thoughtful consideration. An indeterminate permit gives, within the limitations imposed by the statute, a monopolistic privilege and confers valuable rights and benefits. It is certainly not the function of the court by a'construction to extend a statute of that character beyond the boundaries marked out by the legislature. The extension of privileges of that character involves weighty questions of public policy which are peculiarly for the legislative branch. The plaintiff having no indeterminate permit, it has no exclusive right to sell electrical energy to the city of Clinton-ville. The plaintiff having no indeterminate permit, the issues raised by the defendant utility’s answer were not triable in this action as a defense, and we therefore shall upon this appeal entertain no questions raised in respect — 570 — thereto. The defendant utility prayed for no affirmative relief. By the Court. — The judgment directing that the complaint of the plaintiffs be dismissed upon the merits and that the temporary restraining order be vacated and set aside is affirmed, and the restraining order entered in this court pending the appeal is vacated and set aside.