Walbridge v. Berlin Public Service Co. ( 1912 )

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 commission 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.

Upon 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.