Opinion
September 11, 1939 —
October 10, 1939.
APPEAL from an order of the circuit court for Dane county: AUGUST C. HOPPMANN, Circuit Judge. Affirmed.
For the appellant there was a brief by Walter J. Mattison, city attorney, and Joseph L. Bednarek, assistant city attorney, and oral argument by Mr. Bednarek.
For the respondent Public Service Commission there was a brief by the Attorney General, Harold H. Persons and H. T. Ferguson, assistant attorneys general, and Philip H. Porter, counsel, and oral argument by Mr. Ferguson. Fred L. Luehring of Milwaukee, for the respondent town of Greenfield.
This action was begun on April 16, 1938, by the city of Milwaukee, plaintiff, against the Public Service Commission of Wisconsin, town of Greenfield, and city of West Allis, defendants, to set aside an order of the Public Service Commission granting authority to the town of Greenfield, as a public water utility, to construct mains and an elevated tank in the Lapham-Orchard Sanitary District in accordance with the plans and proposals set forth in the application. In the complaint it is alleged:
"That, as your plaintiff is informed and believes, said plans and proposals provide that said defendant, town of Greenfield, connect with the waterworks system of the defendant, city of West Allis."
After the granting of the authority to the town of Greenfield to construct the mains and tank, the plaintiff appeared and demanded a rehearing. Accordingly, a rehearing was had. Upon the rehearing the plaintiff made the same contentions that it makes here. In response to the objections of the plaintiff, the commission made the following finding:
"We fail to perceive how the order of February 19th adopts any source of water supply for the operation of the property therein authorized to be constructed. True, that matter was considered at the hearing because the city of Milwaukee was permitted to intervene in the proceeding and interpose objections to the construction of the utility property; those objections being based upon its fear that the city of West Allis would furnish the water supply required. Nevertheless, the order complained of does not adopt any source of water supply for the operation of that property; and the construction of that property would have been authorized by the commission regardless of what the proposed supply of water might be unless it appeared that it was impossible to obtain any such supply."
The rehearing was denied and this action was begun. The facts were fully set out in the plaintiff's complaint, to which the defendants severally demurred. The several demurrers were sustained on the ground that no cause of action was stated in the complaint. The circuit court said:
"Briefly stated the facts are that the plaintiff city of Milwaukee is a public utility furnishing water to the defendant city of West Allis. The defendant town of Greenfield applied to the defendant Public Service Commission for an order permitting the town of Greenfield to construct certain water-utility property within its territorial limits. It is contemplated that when so constructed the water to supply that territory will be obtained from the city of West Allis. Thus, if the plans are carried out, the necessary water might ultimately be supplied by the city of Milwaukee. The commission entered an order for the construction of such necessary water mains, etc. The city of Milwaukee brings this action to set aside said order of the defendant commission. It seems clear to this court that the demurrers must be sustained. The order involved can in no manner affect the rights, duties or liabilities of the city of Milwaukee. The city of Milwaukee will have its day in court before the commission when that body enters an order directing or prohibiting the city of West Allis to supply the water to the town of Greenfield with which to supply the new water-utility territory. Until that question is at issue the rights, duties or liabilities of the city of Milwaukee cannot possibly be affected. The order entered simply permits the construction of the necessary water mains, etc. In plain language, the entry or denial of such an order is no concern of the city of Milwaukee and therefore the plaintiff has not stated a cause of action."
From the order sustaining the demurrers entered on August 8, 1938, the plaintiff appeals.
It is considered that the trial court correctly held that upon the facts stated in the complaint and the exhibits annexed thereto, it clearly appears that the city of Milwaukee is in no manner affected by the order and so has no interest which entitles it to maintain an action to set aside the order of the Public Service Commission authorizing the town of Greenfield to construct mains and an elevated tank as set out in its application.
By the Court. — The order appealed from is affirmed.