Vill. of Waterbury v. Melendy

• Decision Date: 03 May 1938
• Docket Number: No. 1646.,1646.
• Citation: 199 A. 236
• Parties: VILLAGE OF WATERBURY v. MELENDY et al.
• Court: Vermont Supreme Court

199 A. 236

VILLAGE OF WATERBURY

v. MELENDY et al.

No. 1646.

Supreme Court of Vermont. Washington.

May 3, 1938.

Appeal in Chancery, Washington County; Allen R. Sturtevant, Chancellor.

Suit by the Village of Waterbury to enjoin Emery A. Melendy and others, constituting the Board of Public Works and the Public Service Commission, and Lawrence C. Jones, Attorney General, from enforcing the provisions of a statute authorizing apportionment of expense incurred through the construction of public works for flood control, wherein twelve municipalities intervened as parties plaintiff. From a decree granting a permanent injunction, defendants appeal.

Affirmed.

Argued before POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.

Lawrence C. Jones, Atty. Gen., for appellants. Fred E. Gleason, of Montpelier (David F. Hoxie, of Montpelier, of counsel), for appellee. Peter Giuliani, City Atty., of Montpelier (George L. Hunt, of Montpelier, of counsel), for intervening appellee City of Montpelier. H. C. Shurtleff, of Montpelier, for intervening appellee Town of Worcester.

BUTTLES, Justice.

The General Assembly of 1933 at a special session which convened July 19, 1933, enacted legislation which is now known as chapter 207 of the Public Laws, P.L. 4974 et seq. Such legislation provided for the creation of a Board of Public Works which should consist of the members of the State Highway Board ex officio. Such Board of Public Works was authorized, with the written approval of the Governor, "to co-operate and contract in the name and on behalf of the state with the Federal government in the construction and maintenance of any public works project prepared by the Federal Emergency Administrator of Public Works or other Federal agency now or hereafter created; to accept grants, loans and assistance from the Federal government for the construction, repair, improvement or carrying out of such projects as such board with the written approval of the governor shall designate; to acquire by gift, purchase, lease or by the exercise of the power of eminent domain any real or personal property, including property held for a public use, in connection with the construction or carrying out of any such project; to manage, control and maintain any such public works." P.L. 4975.

It is further provided that under the conditions therein specified such Board of Public Works may petition the Public Service Commission for the taking by the state, under the power of eminent domain, of property in the state, or some easement or other limited right therein, and after notice and hearing and the making of the required findings such commission shall authorize the taking of such property and shall assess the compensation to be paid therefor. Appeal to the Supreme Court on the matter of compensation is provided for.

Section 4980 of said chapter reads thus: "Whenever any public works for flood control constructed under the provisions of this title are completed, the board of public works shall petition the public service commission to apportion the expense incurred by the state including the damages to any person whose land is taken and the special damages which the owner of land adjoining shall sustain by reason of such construction, between the state and the municipalities in accordance with the benefits received. The public service commission shall thereupon set a time and place for hearing and shall give twelve days' notice thereof to the state and the municipalities benefited." The following section provides that the commission shall transmit to each town treasurer a notice of the amount assessed against each town; that such treasurer shall transmit such notice to the selectmen of the town who shall draw an order on the treasurer for the amount of such assessment; that such treasurer shall pay the same to the state treasurer, and if the funds in the hands of the treasurer belonging to the town are not sufficient for the purpose, the selectmen shall borrow the necessary amount. Appeal to the Supreme Court from the decision of the commission on the apportionment of expense is provided for.

Having completed, pursuant to said chapter, three several public works projects known, respectively, as the "Montpelier Channel Cleaning including Clothes Pin Dam," the "East Barre Flood Control Project," and the "Wrightsville Flood Control Project," said Board of Public Works by its petition to said commission dated September 11, 1936, and various amendments thereto, prayed said commission to apportion the expense of said projects between the state and some twenty-four municipalities alleged to be benefited by one or more of these projects, and to set a time and place for hearing in accordance with P.L. 4980.

Thereupon, and prior to the date set for hearing on this petition, the plaintiff brought an action in chancery therein alleging that said chapter 207 of the Public Laws, and especially section 4980, are in violation of sections 2, 5, and 6 of chapter 2 and article 9 of chapter 1 of the Constitution of Vermont and of the due process of law provision and the equal protection of the laws provision of the Fourteenth Amendment of the Constitution of the United States, and praying that a permanent injunction issue restraining the defendants from enforcing or attempting to enforce the provisions of chapter 207, and in particular the provisions of section 4980 thereof. Thereafter, twelve municipalities by leave of the court, as shown by the record, intervened as parties plaintiff. To this bill of complaint the defendants demurred, and upon hearing by the chancellor the defendants' demurrer was overruled and a permanent injunction was granted restraining the defendants from proceeding with the hearing for apportionment and assessment of the expenses of any public works project referred to in the bill of complaint, and also from enforcing or attempting to enforce the provisions of section 4980 of the Public Laws.

The case comes to this court on appeal from this decree.

It is apparent that section 4980 gives a very wide scope for the exercise of the judgment and discretion of the Public Service Commission. Many questions suggest themselves, among others the following: How is the commission to determine, in advance of hearing, what municipalities are benefited, to whom notice of hearing is required to be given? What is the basis of apportionment as between the state and the municipalities? How are the benefits to the municipalities to be determined? Shall it be only on the basis of probable flood protection to riparian property owners, thus requiring assessment of the whole town for the direct benefit of riparian owners only? Is riparian land alone to be considered, or land liable to flowage on a basis of frontage, area, or value, or shall consideration also be given to the personal property of great value which is subject to flood risk in some of the towns and cities? Or is the term "benefits" to be restricted to benefits which the municipality itself, apart from its citizens, may receive, such as protection to its highways and parks and public buildings and any lands to which it may have title? Or is the term to be given a wider application and held to include not only protection to property, but also to life of the inhabitants and intangible benefits like a greater sense of security on the part of inhabitants and sojourners, possibly tending to attract more business to the town?

The statute itself gives no answers to these questions. "Does the determination of the answers by the commission involve the delegation to it of such legislative authority as is prohibited by sections 2, 5, and 6 of chapter 2 and article 9 of chapter 1 of the Vermont Constitution?

Every presumption is to be made in favor of the constitutionality of an act of the Legislature, and it will not be declared unconstitutional without clear and irrefragable evidence that it infringes the paramount law. Village of St. Johnsbury v. Aron, 103 Vt. 22, 27, 151 A. 650; Clark et al. v. City of Burlington, 101 Vt. 391, 397, 143 A. 677; Village of Hardwick v. Town of Wolcott, 98 Vt. 343, 348, 129 A. 159, 39 A.L.R. 1222; State v. Clement Nat. Bank, 84 Vt. 167, 200, 78 A. 944, Ann. Cas.1912D, 22; In re Hackett, 53 Vt. 354, 357.

It is one of the fundamental principles of the American constitutional system that the governmental powers are divided among the three departments of government, the legislative, executive, and judicial, and that each of these is separated from the others. This proposition is clearly stated in our State Constitution. This does not mean, however, an absolute and entire separation of functions which would be impracticable, if not impossible. The Governor is endowed by our Constitution with the veto power and has, to a limited extent, a part in legislation; the House of Representatives may order and the Senate may try impeachments, therein acting as a judicial body; each House of the General Assembly may judge of the qualifications of its own members. Sabre et al. v. Rutland R. R. Co. et al., 86 Vt. 347, 85 A. 693, Ann.Cas.1915C, 1269; Burnett v. Green, 97 Fla. 1007, 122 So. 570, 69 A.L.R. 244; People v. Kelly, 347 Ill. 221, 179 N.E. 898, 80 A.L.R. 890; Searle v. Yensen, 118 Neb. 835, 226 N.W. 464, 69 A.L.R. 257; Minneapolis, St. P. & S. Ste. M. R. R. Co. v. Railroad Comm., 136 Wis. 146, 147, 116 N.W. 905, 17 L.R.A,N.S., 821, 830; O'Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356; Springer v. Philippine Islands, 277 U.S. 189, 48 S. Ct. 480, 72 L.Ed. 845; J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 48 S. Ct. 348, 72 L.Ed. 624.

In this state, as elsewhere, it is a doctrine well established, and frequently reiterated by the courts, that the functions of the Legislature, which are purely and strictly legislative, cannot be delegated, but must be exercised by it alone. Sabre et al. v. Rutland R. R. Co. et al., 86 Vt. 347, 365, 85 A. 693,...