The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1910-12-29
CASE TO GO TO HIGHER COURTS
City is Beaten in Every Point Named
in the Decision by Judge BeIden but
City Attorney Stewart Announces
Case Will be Appealed

The decision Of Judge Belden in the
suit brought by the city of Kenosha to
compel the Kenosha Home Telephone
company to furnish the city free phone
service was handed down this morning
and the telephone company appears to
have won a complete victory. The case
was not regularly tried in. the court
but after the facts in the case had been
stipulated by the attorneys for the com
pany and the city it was submitted to
the Judge after arguments by the at
torneys interested. City Attorney Stew
art when seen this morning stated that
he had been too busy to go into the
decision very thoroughly but that he
was certain that the case would be
submitted to the Supreme court before
the city would be satisfied. The decis-
ion in part follows:
The first question presented to the
court for decision herein is as to the
validity of the so-called franchise uE-
dertaken to be granted by city of Ken
osha to Citizens Telephone and Tele-
graph Company. Tt has been deter
mined in several Wisconsin cases that a
municipality has no power to grant
franchise to a telephone company to
contract, maintain and operate a tele
phone system; that ordinances enacted
to that end undertaking to grant priv
ileges, exact conditions or impose reg
ulations, beyond the valid and proper
exercise Of police power, are void and
Intellectual because an attempt to ex-
ercise a legislative function belonging
to the state and not delegated to the
municipality. It is quite unimportant to
the condition of this case, however, to
determine whether the franchise was
wholly void or not from the outset, or
whether it was valid or void as con-
tract for, by its own provisions, spec
IDLY pleaded by the plaintiff herein,
all rights and privileges undertaken to
be granted and all obligations under
taken to be imposed by it were to con-
tinue perforce only so long as the Citi-
zens Telephone and Telegraph Company,
it's successors and assigns, continued to
operate telephone system in the city
Of Kenosha and when such operations
ceased the franchise became null and
void. sit is so nominated in the
bond,o and such provision is held to
be self executing forfeiture, effective,
in any event, upon the determination
of a court of competent jurisdiction.
Whether the franchise was void or not,
it certainly was superfous and ineffect-
ual, even as to Citizens Telephone and
Telegraph Company, as granting no.
thing not already possessed by said
company under state law, excepting,
possibly, as to special contractual feat
ures with the city and the proper ex-
ercise of the city's police power, of
which latter the requiring of free tele-
phone service in city offices certainly is
not one.
So far as the defendant, Kenosha
Home Telephone Company is concerned,
in this case, it is held that said fran
chise was and is void and Intellectual
as such.
The second question involved is
whether the franchise was effectual as
a contract between Citizens Telephone
and Telegraph Company and City Of
Kenosha. AS to this question the court
holds, for the purposes of this case,
that a binding contractual obligation
existed between City of Kenoshs and
Citizens Telephone and Telegraph Com
pany, either by express provision of the
franchise or by acts of the Citizens
Telephone and Telegraph Company pur-
suant to its provisions, amounting to
estoppel, it matters not which, where
by the Citizens Telephone and Tele-
graph Company was bound to furnish
the specified free telephone service at
least SO long as it, or its successors,
continued to operate a telephone sys-
tenn in the city of Kenosha under or
confessedly pursuant to said franchise.
1t has been determined that such CON
tract for free telephone service, valid
in its inception, is not affected by sub
sequent legislation prohibiting discrim
inatory rates, but is protected by the
constitutional provision against impair
ing the obligation of contracts. 1t may
be noted, in passing, that the contract
involved in the case City of Superior,
VS.. Douglas County Telephone Company,
141 Wis, 363, so confidently relied upon
by counsel for plaintiff herein, called
for the free telephone service therein
specified so long as said company should
operate a telephone system in the city
of Superior. If the Citizens Telephone
and Telegraph Company or its success
sor, still operated telephone system in
the city Of Kenosha quite another ques-
tion might be presented than is pres
ented in this case and one the extent
and effect of which is unnecessary to
| be determined here.
The third and really the primary and