City of Milwaukee v. Public Service Commission

5 N.W.2d 800, 241 Wis. 249, 1942 Wisc. LEXIS 217
CourtWisconsin Supreme Court
DecidedSeptember 18, 1942
StatusPublished
Cited by7 cases

This text of 5 N.W.2d 800 (City of Milwaukee v. Public Service Commission) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Milwaukee v. Public Service Commission, 5 N.W.2d 800, 241 Wis. 249, 1942 Wisc. LEXIS 217 (Wis. 1942).

Opinion

Wickhem, J.

By order of the Public Service Commission, plaintiff city of Milwaukee was required to extend its water service in the town of Milwaukee to certain described premises in the town. Plaintiff, (1) denies the jurisdiction of the Public Service Commission to compel the extension; (2) assuming jurisdiction in the commission, objects to the reasonableness of the order upon the grounds that the costs and difficulty of furnishing service is out of proportion to the needs for service involved; and (3) contends that the rate ordered will occasion loss to the plaintiff and constitute a burden upon its customers. The following are the facts necessary to an understanding of the controversy:

The city of Milwaukee operates a waterworks utility. By contract with the town of Milwaukee it had extended service to residents of the town residing in certain streets in a limited area. This was in the vicinity of Green Bay avenue. Under the terms of this contract, the town of Milwaukee laid mains at its own cost to the Milwaukee city limits, and connected with the Green Bay avenue feeder main. This contract expressly prohibited the town from extending its main to any other streets than those described in the contract, or to sell or to deliver water to any other individual or property. The town of Milwaukee also received some water from the city of Milwaukee utility as a result of a contract with the village of Fox Point. The village of Fox Point takes water from the Milwaukee utility, and in order to get the water constructed a main along the Port Washington road in the town of Milwaukee to connect with the Milwaukee main at Hampton avenue. As a part of its easement agreement with the town of Milwaukee, residents of the town abutting the Port Washington road were permitted to obtain water from the main *252 for domestic uses only. The city of Milwaukee consented to this use and the contract restricted the town to one-inch mains and four fire hydrants. The point at which the Fox Point pipe connects with the Milwaukee main is the intersection of Hampton avenue and Port Washington road. The Milwaukee main runs from this point east for half a dozen blocks to Santa Monica avenue where it connects with a main running north from East Capitol drive extending along Santa Monica avenue the full length of the village of White Fish Bay and serving that village. The area seeking service in this case is a small triangular tract beginning on the east side of the Port Washington road, a short distance north of Hampton avenue, extending north to West Marne avenue, thence southeasterly to North Second street, thence south, to a point slightly north of Hampton avenue. This is a real-estate subdivision, and the impetus to get water comes from the desire of the promoters for the advantages of city water. The tract is twenty-nine acres in extent, appears to cover four platted blocks, and has upon it thirty-three homes and one hundred one vacant lots. The estimated population will be five hundred forty-nine people when fully built up. One of the city’s objections to serving this area, which presently is getting its water from private wells, is that the pressure on the Santa Monica, Hampton, Fox Point line is not enough to take care of any more customers in the town of Milwaukee, and that as a result a ten-inch main off the Green Bay road running east to Plampton avenue would have to be built or a main which runs for a couple of blocks on the Port Washington road north from East Capitol drive would have to be extended north to the intersection of the Port Washington road and Hampton avenue. The construction of either main would require the expenditure of from thirty to forty thousand dollars, and the mains when so constructed would be of considerably greater capacity than necessary or proper to serve the area presently requesting water. It is claimed that *253 to require the expenditure would be unreasonably burdensome upon plaintiff; that at present rates, plaintiff could not possibly earn on this investment; that the number of people demanding service is so small and the prospects of their increasing so slight that this service cannot be furnished economically and would have to be recompensed for by rates much above those charged currently by the plaintiff.

Plaintiff assumes that the question is whether the Public Service Commission has jurisdiction to compel a municipally owned waterworks utility to extend its service into an adjoining township and render water service in a new area. The question is narrower than this. It is whether a municipal utility which, by contract with an adjoining town, has assumed to serve small, isolated, and precisely limited portions of a town, has become a utility throughout that entire town, and bound to extend its service in response to orders of the Public Service Commission. In Pabst Corp. v. Milwaukee, 190 Wis. 349, 208 N. W. 493, it was held that the city of Milwaukee was a municipal water utility, subject to regulation and control by the railroad commission. This, of course, is conceded by plaintiff, but is claimed to be wholly immaterial in this case, and we agree that the Pabst Case does not touch the precise question that concerns us here. The city of Milwaukee is a municipal water utility, but the question here is whether it is such a utility in the town of Milwaukee as a whole. We are of the view that if the Milwaukee utility by extending its service beyond the limits of the municipality became a utility outside its boundaries to the extent of its holding out as such, the geographical scope of this holding out must be measured by the terms and limitations of the contract with the town by which the service was extended. See Milwaukee v. West Allis, 217 Wis. 614, 258 N. W. 851, 259 N. W. 724; Milwaukee v. West Allis, 236 Wis. 371, 294 N. W. 625. Thus, in the West Allis Cases, cited supra, where the city of Milwaukee agreed by contract to furnish *254 the West Allis utility with water for the convenience of the patrons of that utility, termination of the contract was held not to terminate the duty of the Milwaukee utility to continue at a rate to be fixed by the Public Service Commission to serve the water needs of the community which by contract it had undertaken to serve. See also in this connection Wisconsin T., L., H. & P. Co. v. G. B. & M. C. Co. 188 Wis. 54, 205 N. W. 551. In the West Allis Cases it will be noticed that the city of Milwaukee undertook to supply the entire municipality which had contracted for water service.

The case of the town of Milwaukee is quite different. Here, to paraphrase the language of Wisconsin Gas & E. Co. v. Railroad Comm. 198 Wis. 13, 222 N. W. 783, the Milwaukee utility has done precisely what it was necessary for it to do to prevent it from becoming a public utility in the town as a whole. It serves only two small and isolated portions of the town under special contracts. The first and principal portion is that along Port Washington road. The service to this portion is in response to the obligations of a carefully limited contract entered into as an incident to the city’s effort to serve the village of Fox Point, and in response to the necessities of getting an easement from the town of Milwaukee. The contract limits the service to those residences abutting on the Port Washington road and to a few fire hydrants.

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Bluebook (online)
5 N.W.2d 800, 241 Wis. 249, 1942 Wisc. LEXIS 217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-milwaukee-v-public-service-commission-wis-1942.