Ace Ambulance Service, Inc. v. City of Augusta

• Decision Date: 15 May 1975
• Citation: 337 A.2d 661
• Parties: ACE AMBULANCE SERVICE, INC. v. The CITY OF AUGUSTA.
• Court: Maine Supreme Court

Page 661

337 A.2d 661

ACE AMBULANCE SERVICE, INC. v. The CITY OF AUGUSTA.

Supreme Judicial Court of Maine.

May 15, 1975.

John L. Hamilton, Lewiston, for plaintiff.

Sanborn, Moreshead, Schade & Dawson, by Richard B. Sanborn, Augusta, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

WEATHERBEE, Justice.

This appeal involves the dismissal of a complaint brought in Superior Court, Androscoggin County, by the appellant, Ace Ambulance Service, Inc., against the City of Augusta and the City of Gardiner, the County of Kennebec and the Southern Kennebec Valley Regional Planning Commission. We deny the appeal.

The appellant, a private ambulance service operating throughout the Southern Kennebec Valley Region (which includes the City of Augusta), alleged that the defendants

'jointly and individually plan to organize a non-profit ambulance service which will compete with plaintiff at lower prices and which will thereby cause losses to plaintiff in the form of diminution in the value of current capital investment, lost revenue and lost profits.'

The appellant in its complaint seeks (1) to have the defendants enjoined from organizing, subsidizing or in any other manner undertaking the provision of ambulance service and, (2) in the alternative, the appellant seeks compensation for deprivation of its property which it alleged would be caused by fulfillment of the defendants' plans.

The defendant, The City of Augusta, in its answer, admitted that it is involved in plans to carry on a public ambulance service, claiming clear legislative authorization under 30 M.R.S.A. § 5105(7). ¹

The presiding Justice granted a motion to dismiss the complaint as to all the defendants except the County of Kennebec for failure to state a claim upon which relief can be granted. M.R.C.P., Rule 12(b)(6). ² The appellant appealed from the dismissal only as to the defendant City of Augusta.

The nature of an appeal from a Rule 12(b)(6) dismissal requires a full inspection of the claims which might entitle a plaintiff-appellant to relief. The sufficiency of a complaint is measured by a standard less harsh than that applied upon the filing of a demurrer under our former practice. We have said that a complaint should not be dismissed under Rule 12(b)(6)

"unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim." Richards v. Ellis, Me., 233 A.2d 37, 38 (1967) (quoting from 2A Moore, § 12.08) (emphasis in the original). ³

See also Cohen v. Bowdoin, Me., 288 A.2d 106 (1972); New England Merchants National Bank v. McKinnon, Me., 307 A.2d 225 (1973); Field, McKusick and Wroth, Maine Civil Practice, Vol. I, § 12:11.

Here, as in Richards, the almost obvious issues concern broad principles of substantive law. The present complaint alleges an invasion into the field of ambulance service by a municipal corporation in competition with existing private service. The defendant City answers that it was authorized to enter this field by a statute enacted by the Legislature. Although not specifically pleaded, we find it implicit in the complaint that the plaintiff disputes the constitutionality of a statute which purports to endow a municipality with such unconditional authority.

It is also discernible from the complaint, although also not specifically alleged, that the plaintiff claims, alternatively, an entitlement to money damages on the theory that the City's entrance into the field will constitute a taking of part of the plaintiff's existing business in the nature of eminent domain. The City does not dispute that this has been its understanding of the plaintiff's alternative allegation.

Our problem then becomes one of the application of substantive law.

Constitutionality of the Statute

On appeal, the plaintiff urges us that the Legislature may constitutionally permit a municipality to enter this private sector in competition with existing private service only if it is determined that the existing local private service is inadequate. ⁴ A municipality, we are reminded, may raise and appropriate money for proper public purposes only. Laughlin v. City of Portland, 111 Me. 486, 490, 90 A. 318, 320 (1914). The defendant concedes that providing emergency ambulance service to injured and sick persons in need of immediate medical attention is a proper public service as such-but argues that under the rule established in Laughlin a particular municipality may not engage in this activity, even with statutory authorization, if the needs of its citizens are already being served adequately by private individuals. We do not so construe Laughlin.

Laughlin has long been considered definitive as to the Legislature's authority to authorize municipalities to enter fields of endeavor already occupied by commercial enterprise. Laughlin reasoned that the authority for a municipality to raise and appropriate money is akin to the right to take private property by eminent domain and is limited by art. I, § 21 of the Maine Constitution. Public funds, the Court said, can be spent only for 'public purposes' and only as 'the public exigencies require it.' 111 Me. at 490, 90 A. at 320. The Legislature's decision that the purpose for which private property is to be taken is a public use, although presumably correct, is subject to judicial review.

On the other hand, the question of determining exigency has long been considered to be a political decision for the Legislature to make, free from judicial review (unless it can be said there is no rational basis upon which exigency could be found). Hayford v. Bangor, 102 Me. 340, 343, 66 A. 731, 732 (1907); Kennebec Water District v. City of Waterville, 96 Me. 234, 52 A. 774 (1902). See also In re Bangor Hydro-Electric Company, Me., 314 A.2d 800 (1974).

We adhere to the Laughlin Court's acceptance of the double test-that is, the necessity of the presence of both public use and exigency-based upon the analogous relationship of this situation of that of eminent domain. It is necessary to remember, however, that in authorizing a taking by eminent domain the Legislature may make a finding of public use and delegate the determination of exigency to the municipality or public-service corporation which exercises the taking authority (Roberts v. Portland Water District, 124 Me. 63, 126 A. 162 (1924)) or the Legislature may itself determine both the proper nature of the use and the exigency of the taking. Riche v. Bar Harbor Water Company, 75 Me. 91, 96 (1883); Hayford v. City of Bangor, 102 Me. 340, 66 A. 731 (1907); In re Bangor Hydro-Electric Company, Me., supra at 805. Similarly, the Legislature may condition its grant of authority of municipal appropriation for public purposes upon the existence of local conditions or it may make a general determination of exigency itself.

In Hayford v. City of Bangor, supra, the Legislature had by general law authorized municipalities of more than 1000 inhabitants to take, through action by their municipal officers, suitable lands for public parks, public squares or a public library building. The Hayford Court said that

'. . . the municipal officers do not pass upon the question of necessity. That has already been done by the Legislature before their duties begin.' 102 Me. at 343, 66 A. at 732.

In the present situation, the Legislature itself, in enacting 30 M.R.S.A. § 5105(7), has found both that providing an ambulance service is a proper public purpose and that the exigencies justify authorizing municipalities to raise and appropriate money for this purpose. ⁵ No authority to determine the exigency justifying the expenditure of public moneys remained to be delegated to the municipalities nor was the exercise of the power granted by the Act conditioned upon any finding of specific local lack of ambulance service. The Legislature left to the various municipal appropriating bodies only the political decision of the appropriateness of their entering into the field of ambulance service.

The statute does not speak to the situation which may prevail at certain places at certain times. It is a general statute reflecting a determination that the furnishing of ambulance service is a proper public purpose and that in view of its critical nature and the uncertainties of the future, municipalities should be free to decide whether their particular circumstances make it appropriate for them to assume a responsibility for furnishing it.

This, we understand, is the underlying rationale of the Laughlin opinion. The Legislature in 1903 had authorized municipalities to maintain fuel yards and sell fuel to their inhabitants at cost. The plaintiffs sought to enjoin the City of Portland from acting under this statute contending that the legislature exceeded its constitutional powers in attempting to authorize the use of public funds for what the plaintiffs considered to be a private purpose. The Court made an exhaustive study of the existing authority concerning the distinction between private and public use and reiterated its acceptance of the definition of public use laid down by Judge Cooley in his work on Constitutional Limitations, 6th ed., at 655, to wit:

"That only can be considered a public use where the government is supplying its own needs or is furnishing facilities for its citizens in regard to those matters of public necessity, convenience or welfare which on account of their peculiar character and the difficulty-perhaps impossibility-of making provisions for them otherwise, is alike proper, useful and needful for the government to provide." 111 Me. at 498, 90 A. at 323. See Brown v. Gerald, 100 Me. 351, 370, 61 A. 785, 793 (1905).

The Laughlin Court applied a two-pronged test-that the subject matter must be one of public necessity, convenience and welfare (which, the Court said, clearly includes fuel), and that it must be of such a nature that the difficulty...