The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1910-02-24
PUBLIC UTILITIES ACT VALID.
Judge E. B. Belden in Decision Today
Declares That the Council Acted
With Warrant in Granting a New
Franchise
(From Saturday IS Daily

county this morning Judge II. b. Beld-
en- handed down one Of the most i'm
portant decisions since the passage OF
the Wisconsin "Public Utility Law. !"
In his decision the court declares In
valid a franchise granted by the COM
mon council of Kenosha to the Keno
sha Electric Railway Company and
declares further that the fact that the
city of Kenosha made a contract
with that company to furnish lights
to the city did not in any sense
of the word confer franchise rights
upon the company. 1t is expect
ed that the Kenosha Electric Rail-
way will at once take an appeal of
the case to the supreme court
The decision was handed down in
the suit Of the Kenosha Gas and Elec
tric Company VS.. the Kenosha Elec
trio Railway Company. The proceed
ing was a quo warranto proceeding by
which the Kenosha Gas and Electric
Company, a company working under
an indeterminate permit under the pub
lie utilities act sought to determine
the rights Of the Kenosha Electric
Railway Company under the alleged
contract and the franchise granted to
the company by the city. The deci-
sion is complete victory for the
plaintiff company. In handing down
the decision Judge Belden said:>
'FThe function of the court herein
is merely to declare an Interpretation
Of the law questioned and to construe
the contract in question, without ex-
pressing views concerning any public
interest, policy or expendiency that
may be involved. Nor is it consider
ed to be within the court s discretion
to direct what result shall follow it's
ruling. Because any extended dis
cussion Of the matter by this court
would serve no useful purpose the con-
illusions of the court will be announced
briefly and without discussion.
"'By Section 1897 MIA R. S. the
legislature has forbidden municipalities
to grant franchises to public service
corporations, where there exists a
similar untility in the municipality
operating under an indeterminate per-
nit. This prohibition is absolute ex-
cept in the single instance where the
railway commission has determined
that public convenience and necessity
require a second similar public utility.
The rule is we'll established is Wis
consin that unconstitutionality Of a
statute must be clear and manifest
before the courts will so declare it
and that if there is any reasonable
doubt as to its constitutionality the
statute should be upheld. The court
is of the opinion that Section 1894
MIA r. S. of the Public Utilities Act
does not delegate or undertake to dele
gate legislative powers to the rail
road commission and that in so far as
it is attacked in this section it is con-
stitutional and valid.
That the contract for lighting in
question entered into April 10, 1909 be-
tween the city of Kenosha and the
Kenosha Electric Railway Company
was more commercial transaction,
that the city did not exercise or under
take to thereby exercise any legisla-
tive function or authority and that
such contract did not carry expressly
or by implication any franchise, grant,
agreement, right or authority to the
Kenosha Electric Railway Company to
enter upon and use the public streets
of the city of Kenosha for the pur-
pose OF fulfilling such contract It is
not claimed that the Kenosha Electric
Railway Company was authorized by
any other resolution, act or agreement,
on the part of the city of Kenosha
except the ordinance of June T, 1909,
to use the streets in order to exercise
the powers granted by its corporate
charter and which said contract con
cerned
sThat the proceedings leading up
to the purported franchise of June Z,
1909, undertaking to grant to the Ke-
nosha Electric Railway Company the
Fuse of the public streets for lighting
purposes, were not complete and eff
fective until the last act required by
statute to be done to that end, had
been performed and that the fact that
application for such franchise had
been made, and proceedings had there
on prior to the surrender by the Ke-
nosha Gas and Electric Company, of
its franchise and the grant to it by the
railroad commission of an indetermin-
late permit, does not save the situa-
ton.
THAT the franchise undertaken to
be granted by the city council. of the
/ city Of Kenosha, to the Kenosha Elec-
/. trio Railway Company, June Z, 1909,
! NH n. u, !