Milwaukee Electric Railway & Transport Co v. Public Service Commission

52 N.W.2d 876, 261 Wis. 299, 1952 Wisc. LEXIS 434
CourtWisconsin Supreme Court
DecidedApril 8, 1952
StatusPublished
Cited by4 cases

This text of 52 N.W.2d 876 (Milwaukee Electric Railway & Transport Co 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
Milwaukee Electric Railway & Transport Co v. Public Service Commission, 52 N.W.2d 876, 261 Wis. 299, 1952 Wisc. LEXIS 434 (Wis. 1952).

Opinion

Gehl, J.

In support of its order the commission found that as to each of the proposed extensions public convenience and necessity require them, and that the construction and operation of each would not impair the company’s earnings so as to prevent an adequate or fair return. These findings and the orders were made pursuant to and under the provisions of sec. 193.10, Stats., which reads:

“Any street-railway corporation operating within any municipality shall extend its lines and furnish service thereon whenever, after complaint made and public hearing after notice to all parties, interested, the commission shall have found and declared that public convenience and necessity [302]*302require such extension and such additional service, and that the construction and operation of such extension will not impair the earnings of the said corporation so as to prevent an adequate or fair return, . . .”

The finding that the public convenience and necessity require the extensions is not seriously challenged. The other is. To disturb it we must determine that it is unsupported by substantial evidence in view of the entire record. Sec. 227.20 (1) (d), Stats.

The company contends that the commission’s observation that its rate of return would be reduced, although by less than one-tenth per cent, and that the extension would require a capital expenditure of over a quarter of a million dollars, demonstrates that the finding that its earnings would be unimpaired is unsupported and also that, considered in the light of its record of earnings during the recent years, con-cededly not large, there is a further lack of support for the finding. These facts are not controlling. If the required extension will produce or increase an existing loss of revenue the commission might reasonably assume that the company will take appropriate steps to save its property from confiscation, that is, apply for a rate increase. New York ex rel. Woodhaven Gas L. Co. v. Public Service Comm. 269 U. S. 244, 46 Sup. Ct. 83, 70 L. Ed. 255.

Evidence that the extension will not prevent an adequate or fair return is found in the testimony, in inferences, and from the reasonable anticipation that there will be a continued development and growth of the substantial area to be served; that there are numerous commercial establishments, schools, and churches in the area; that an increase in patronage will result from the improvement in service, and that there will be a resulting increase in the revenue produced by the operation of the extended lines.

The court must also recognize that the commission has expert knowledge, that such knowledge may be applied by it, [303]*303and that even though we might differ with the commission, we are without power to substitute our views of what may be reasonable. New York & Queens Gas Co. v. McCall, 245 U. S. 345, 38 Sup. Ct. 122, 62 L. Ed. 337; Ray-O-Vac Co. v. Wisconsin E. R. Board, 249 Wis. 112, 23 N. W. (2d) 489; sec. 227.20 (2), Stats. We may not disturb the commission’s findings.

The commission’s order of March 29, 1949, directs:

“1. That the Milwaukee Electric Railway & Transport Company be and hereby is directed to extend its trackless trolley line on West Center street from North Sixtieth street to North Seventy-sixth street in the city of Milwaukee.
“2. That the Milwaukee Electric Railway & Transport Company be and hereby is directed to extend its trackless trolley line on West North avenue from North Sixtieth street to Ludington avenue in the city of Wauwatosa.
“3. That the operation of such extensions shall be commenced on or before October 1, 1949.”

That of March 15, 1950, directs:

“1. That the order of this commission of March 29, 1949, in the above dockets be and hereby is affirmed.
“2. That the Milwaukee Electric Railway & Transport Company should proceed forthwith to extend the trackless trolley operations as provided in the commission’s order of March 29, 1949, and that operation of such extensions shall be commenced on or before September 1, 1950.”

Both orders were affirmed by judgment of the trial court entered on October 3, 1951.

Are these orders, without any action on the part of the cities of Milwaukee and Wauwatosa, effective to require the company to extend its lines ?

The answer is contained in State ex rel. Milwaukee v. Milwaukee E. R. & L. Co. 169 Wis. 183, 172 N. W. 230. That was a mandamus action brought by the city of Milwaukee to compel the defendant street-railway company to extend a line then being operated under a franchise on a [304]*304street in the city. Prior to the action application had been made to the Railroad Commission, now known as the Public Service Commission, for an order requiring extension of the lines. The application was denied. The court had for consideration sec. 1863, Stats. 1917, which reads as follows:

“Any street-railway corporation operating within any municipality shall extend its lines and furnish service thereon whenever, after complaint made as provided in section 1797 —4 and public hearing after notice to all parties interested, the railroad commission shall have found and declared that public convenience and necessity require such extension and such additional service and that the construction and operation of such extension will not impair the earnings of the said corporation so as to prevent an adequate or fair return, and provided that any such order shall be subject to judicial review in like manner as now provided by law with respect to other orders of the railroad commission, and such corporation may extend its railway to any point within any town adjoining the municipality from which it derived its franchise, and for such purposes may, with the written consent of a majority of the supervisors of such town, lay and operate its railway upon, across, and along any highway, but not so as to obstruct common public travel thereon. Corporations may be formed and governed in like manner as is provided in section 1862 for the purpose of building, maintaining, and using railways with rails of wood or iron in any city, village, or town, or to extend from any point in one city, village, or town to, into, or through any other city, village, or town, and for running cars propelled by animals or other power for the carriage of either passengers or freight; and for that purpose, with the consent of the common council of any city, the board of trustees of any village and the written consent of a majority of the supervisors of any town in, into, or through which such railway or tramway may extend, may lay and operate their railways or tramways upon, across, and along any highway, but not so as to obstruct the common public travel thereon. 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 [305]

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Bluebook (online)
52 N.W.2d 876, 261 Wis. 299, 1952 Wisc. LEXIS 434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milwaukee-electric-railway-transport-co-v-public-service-commission-wis-1952.