The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1912-05-02
STATE LAW COVERS FRANCHISE
Opinion in Long Contested Case Closes
Door of Further Litigation so far as
City is Concerned Old Franchise Is
Held to Be Null and Void.

/
court in the suit of the city against
the Kenosha Home Telephone Com
pany and the decision Of the court
which was written by Justice Vinje
pretty nearly clears up everything in
connection with the old controversy,
That the people of the city may know
just the opinion of the supreme court
on the merits of the case, which was
handed down without a dissenting
opinion the decision of Justice Vinje
is given as follows:
THE first question presented by the
appeal is, Was the ordinance of March
1908, purporting to grant to the Citi-
zens Telephone & Telegraph Company
the right to operate general tele-
phone system IN the city of Kenosha,
valid as a franchise? This court has
! repeatedly answered the question in
the negative. The only franchise
needed by telephone company to en-
able it to conduct its business any
where within the state is the fran
chise conferred upon it by virtue of
section l778 Stats, when it is incor
porated pursuant thereto. The Wis
consin Telephone Co. V. The City of
Oshkosh, 62 Wis. 80; City of Marsh
| field v. Wisconsin Telephone Co. 102
Wis. 604; The State ex rel. The Wis
consin Telephone Co. V. City Of She
boygan, Ill Wis. %, State ex rel. Wis
consin Telephone Go. v. City Of She
boygan, ia Wis. sos; Wisconsin Tele-
phone Co. v. Milwaukee, 126 Wis. l
State ex rel. Smythe VS.. Milwaukee
Independent Telephone Co. 1873 Wis.
5S8. Such franchise confers upon the
incorporated telephone company full
and adequate authority to construct
its lines upon the public highways Of
the state and the streets of munich
palities subject only to reasonable reg
nlations under the police power. Wis
consin Telephone Company v. City Of
Milwaukee, 126 Wis. L; State ex rel.
Smythe V. Milwaukee Independent
Telephone Company, 133 Wis. 588.
The attempted exercise, therefore, by
the city of the legislative function Of
granting a. franchise was Intellectual
and void. City Of Marshfeld Y. Wis
consin Telephone Co. 102 Wis 604; The
State ex rel. The Wisconsin Telephone
Co. Y. City of Sheboygan, Ill Wis. %;
The State ex rel. The Wilter Mfg. Go.
v. The Milwaukee, Burlington & Lake
Geneva Railroad Co. 116 Wis. 142;
State ex rel, Smythe v. Milwaukee In
dependent Telephone Co. 1873 Wis. 58S.
But it would avail the city nothing
if the franchise was valid at its in
ception, for the provision contained
in section 5 thereof for free telephones
was repealed by the enactment of Oh.
400 Laws of 1907, known as the public
utility law. Sec. 1797m-S9 thereof pro-
vided.
eff any public utility or, any
agent or officer thereof, or any officer
of any municipality constituting a
public utility as defined in this act
shall, directly or indirectly, by any de-
vice whatsoever, or otherwise, charge,
demand, collect or receive from any
person, firm or corporation, a greater
or less compensation for any service
rendered or to be rendered by it in
or affecting or relating to the produc-
tion, transmission, delivery or furnish
+ ing Of heat, light, water or power or
the conveyance of telephone message
or for any service in connection there
with than that prescribed in the pub
lished schedules or tariffs then in
force or established as provided here
in, or than it charges, demands. col
lects or receives from any other per-
son, firm or corporation for a like and
contemporaneous service, such public
utility shall be guilty Of unjust dis
elimination which is hereby prohibit
ed and declared to be unlawful. and
upon conviction thereof Shall forfeit
+.
and pay into the state treasury not
less than one hundred dollars nor more
than one thousand dollars for each Of
Tense; and such agent or officer SO Of.
! Tending shall be deemed guilty of q
misdemeanor and upon conviction
Thereof shall be punished by fine Of
mot less than fifty dollars nor more
than one hundred dollars for each Of
Tense. =
The effect of this law was to amend
the franchises of all existing public
utilities operating within the state SO
as to conform to its provisions. City
of Manitowoc Y. Manitowoc & North
ern Traction Co. AS Wis. l3; CITY Of
Lacrosse N. Lacrosse Gas & Electric
Co. AS Wis. 40S; Calumet Service Co.
Chiffon, (Wis.) 1S5 n. W 1871; Trus-
1 teps of Kilhourn II Sop+ba.n yu.