#### Walbridge, Respondent, vs. Berlin Public Service Company, Appellant.

*October 9*

October 29, 1912.

*Public utilities: Rules: Approval by Railroad Commission: Discontinuing service: Injunction: Jurisdiction of circuit court.*

[1. Whether, in view of secs. 1797m. — 64 to 1797m — 66 of the public utilities law (ch. 499, Laws of 1907), a circuit court other than that for Dane county had jurisdiction to entertain an action by a private individual to restrain a public utility from discontinuing its service to the plaintiff because of his refusal to comply with rules filed by the utility with the Railroad Commission, — no formal order approving such rules having been made by the commission or being expressly provided for in the law, and there being no express provision requiring the commission to investigate into the reasonableness of such rules upon the complaint of a single *citizen,*— not determined.]

2. A rule of a public utility company supplying hot water for heating purposes, providing for installation of thermostats by the company at cost, being on its face reasonable, and there being no showing that the cost would he great or that the time necessary for installation would be so long as to materially interfere with the comfort or health of the occupants of plaintiffs house and no contract existing by which the company was bound to furnish heat to plaintiff for any fixed time, there was no ground for interference by a court of equity to restrain the company from discontinuing its service because of plaintiffs refusal to comply with said rule and permit the company to install a thermostat.

Appeal from an order of tbe circuit court for Green Lake county: Chester A. Fowlee, Circuit Judge.

*Reversed.*

This is an appeal from an order denying a motion to vacate a preliminary in junctional order. The in junctional order was obtained from a court commissioner at the commencement of the action, February 12, 1912, upon the complaint alone, and enjoined the defendant (a public utility corporation supplying hot water for heating purposes) from disconnecting the pipes in the plaintiff’s house in Berlin from the defend • ant’s mains, and from discontinuing its service of hot water to the house during the pendency of the action.

*70. Tlie complaint alleged tbat plaintiffs bonse bad been beated by bot water furnished by defendant tbrougb its mains since September 1, 1905; tbat plaintiff contracted witb defendant September 1, 1910, for beat for tbe season ending May 15, 1911, for tbe sum of $107.20 to be paid in certain monthly instalments; tbat tbe beat was furnished and tbe instalments regularly paid for tbat season, and tbat in September, 1911, tbe contract was renewed for another season; tbat tbe beat was furnished by tbe defendant under tbe renewed contract and tbe instalments paid up to and including tbe instalment due February 1, 1912; tbat defendant in January, 1912, pretended to adopt and establish certain rates and rules, and on February 5, 1912, served a copy of tbe rales on tbe plaintiff witb a notice tbat unless be complied witb rules 5, 6, and 14 by February 10 th tbe service of beat would be discontinued. Tbe rales so referred to are as follows:

“5. *Discontinuance of service.*Tbe company reserves tbe right, upon five days’ notice, to cut off its service for nonpayment of bills, for failure to comply witb its rules and regulations, or to guard against fraud or loss. In case tbe service has to be discontinued under this clause, a charge will be made for turning on tbe water of an amount equal to tbe actual cost of shutting off and turning on tbe water.

“6. *Equipment paid by consumer.*All service mains, radiators, thermostats, valves, piping and fitting are to be paid for and maintained by tbe consumer.

“14. *Thermostats.*Tbe company reserves tbe right to furnish and install all thermostats connected to its beating system at or as near cost to tbe consumer as they can be installed, and to adjust and maintain tbe same at all times, other than .breakage by tbe consumer or worn out parts, which supplies and repairs shall be made by tbe company at cost to tbe consumer.”

Tbe complaint further charged tbat tbe pipes and valves in tbe plaintiff’s bouse, including tbe thermostat therein, were in tbe same condition at tbe time tbe notice was served as in previous years; that bis aged motber-in-law, suffering from *71severe illness, lived with, him; that his house could not be properly heated in any other way than by the hot water from the main; that in case of discontinuance of service the necessary changes could not he made except with long delay, and that he would suffer irreparable injury thereby during the cold winter months.

By the answer it was alleged that the rules 'aforesaid were adopted and filed with the Eailroad Commission in December, 1911, and have been effective since January 1, 1912, and that no action had ever been brought to change the same as provided by ch. 499 of the Laws of 1907 (secs. 1797m — 1 to 1797m — 108, Stats.) ; that the plaintiff refused and still refuses to allow the defendant to install a proper thermostat in his home, and that the notice of discontinuance was given for that reason.

The motion to vacate the injunction was based upon the answer and certain affidavits, as well as upon the examination of the plaintiff taken under sec. 4096, Stats. It appeared by the plaintiff's own testimony taken upon this examination that there was “no agreement between the company and myself in September, 1911,” and none since that time; that there were several conversations in October 'and Uovember, 1911, in which the parties wrangled over the question of whether plaintiff should put in a thermostat, and the final result was that it was understood the company would go on and furnish heat and the plaintiff would put in a thermostat if the Eail-road Commission said he had to do so; that the plaintiff had in his house a contrivance which he considered was a sufficient thermostat, namely, a very sensitive thermometer, hung in the warmest room in the house, which rings a bell when 74 degrees is reached, which bell continues to ring until some person goes to the common room of the house and turns a wheel valve handle controlling the shut-off valve in the basement; that heat was furnished by the defendant, and that the plaintiff paid the monthly instalments up to and including the in-*72stalment of February 1st, when tlie notice of discontinuance was served. It also appeared by tbe affidavits of experts that tbe apparatus called a thermostat by tbe' plaintiff was not a thermostat in fact, because it did not automatically control tbe beat; that tbe rules 'aforesaid were filed with tbe Eail-road Commission and became effective January 12, 1912, but that no formal order bad been made by tbe commission approving tbe rules before tbe commencement of tbe action. Upon this showing tbe circuit court declined to vacate tbe temporary injunction, and tbe defendant appeals.

For tbe appellant there was a brief by *John J. Wood, Jr.,*and *McCabe &■ Dahlman,*and oral argument by *Mr. Wood.*

*Perry Nislcern,*for tbe respondent.

Winslow, C. J.

Tbe principal contention of tbe appellant is that under tbe public utilities law (cb. 499, Laws of 1907, and tbe subsequent amendments thereto), by which'all public utilities are placed under tbe control of tbe Eailroad Commission, tbe trial court bad no jurisdiction to make tbe temporary injunctional order in question or entertain this action, because by that law tbe circuit court for Dane county alone can entertain such action, and it must be brought against tbe Eailroad Commission itself.

Tbe law provides for tbe filing with tbe commission of rates and rules by every public utility (secs. 1797m — 27, 1797m— 28). It also provides that certain specified corporate bodies and twenty-five individuals, firms, or corporations may make complaint to tbe commission against either the rates or rules, and that tbe commission shall thereupon make investigation as to tbe subject matter of tbe complaint (sec. 1797m — 43). It also provides that a summary investigation as to tbe rea.-sonableness of rates, adequacy of service, or any matter relating to tbe utility, may at any time be made by tbe commission of its own motion (sec. 1797m — 49). Notice of bearing in either case is to be given, and at tbe conclusion tbe com*73mission is given power to substitute new rates or change the existing rules, or require proper service by order which must thereafter be obeyed by the utility (secs. 1797m — 46, 1797m — 60, 1797m — 61).

The law then provides that the public utility itself or any person or corporation in interest dissatisfied with “any order of the commission fixing any rate or rates, tolls, charges, schedules, joint rate or rates or any order fixing regulations, practices, act or service” may sue the commission in the circuit court for Dane county to vacate the order within ninety days after the rendition of the order, and that all right of action or recourse to the courts shall cease absolutely at the end of the ninety-day period; further, that no injunction staying such order shall issue except on application to the circuit court or presiding judge thereof upon notice to the commission (secs. 1797m — 64, 1797m — 65, 1797m — 66).

The law does not in express terms provide that any formal order shall be made by the commission approving the schedules of rates or the rules filed by the public utility upon the filing of the same; nor does it provide in express terms that the commission shall be required to investigate into the reasonableness of the rates or rules adopted by any utility and filed upon the complaint of a single citizen; hence the plaintiff in the present case argues that the circuit court for Green Lake county had not been deprived of jurisdiction, because no order had yet been made which could he reviewed in an action brought against the commission under the provisions of the law in the circuit court for Dane county.

The question is not free from difficulty, and we express no opinion upon it either way because we find it entirely possible to decide this appeal upon other grounds. We have stated the contention here for the reason that it would seem that it is a matter which may well be brought to the attention of the legislative branch of the government, to the end that by proper amendment of the law the doubt may be cleared up.

*74Upon the merits of the ease we think the temporary injunc-tional order should have been vacated.

On the face of it the rule requiring the installation of a thermostat seems entirely reasonable. A thermostat means an automatic regulator of heat *(Murphey v. Weil,*92 Wis. 467, 66 N. W. 532), and this the plaintiff did not have. By his own affirmative testimony it appears that he had no entire contract with the defendant company to furnish heat for the season, but simply an arrangement that the defendant would go on and furnish heat for a time not fixed, and that the Kail-road Commission was to be appealed to to decide whether a thermostat should be put in. The cost of putting in a thermostat nowhere appears, nor the time required to install it. There can be no presumption, in the face of common knowledge on the subject, that the cost would be great or the time necessary for installation would be so long as to materially interfere with either the comfort or the health of the occupants of the plaintiff’s house. When it appeared by the plaintiff’s admission that he had no season contract with the defendant, there remained no ground upon which a court of equity could, be called upon to interfere, and the preliminary injunctional order should have been at once vacated.

*By the Court.*— Order reversed, and action remanded with directions to vacate the preliminary injunctional order.