Orono-Veazie Water Dist. v. Penobscot County Water Co.

• Citation: 348 A.2d 249
• Decision Date: 02 December 1975
• Docket Number: ORONO-VEAZIE
• Parties: WATER DISTRICT v. PENOBSCOT COUNTY WATER COMPANY.
• Court: Supreme Judicial Court of Maine (US)

Page 249

348 A.2d 249

ORONO-VEAZIE WATER DISTRICT v. PENOBSCOT COUNTY WATER COMPANY.

Supreme Judicial Court of Maine.

Dec. 2, 1975.

Verrill Dana Philbrick Putnam & Williamson by Roger A. Putnam, Portland, for defendant.

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

DUFRESNE, Chief Justice.

This case is before the Law Court on report upon an agreed statement of facts pursuant to Rule 72(b), M.R.Civ.P.

On September 23, 1971 (Private and Special Laws, 1971, c. 67) the Legislature created the Orono-Veazie Water District (the District) by constituting the inhabitants and territory within the Towns of Orono and Veazie in the County of Penobscot a public municipal corporation, subject to acceptance and approval by a majority vote of the legal voters within the two towns. The Act expressly voided a prior incorporation of the District under chapter 50 of the Private and Special Laws of Maine, 1969. The referendum on the proposal was held in October, 1971 and the District was approved by a majority of the votes cast.

Pursuant to section 11 of chapter 67, the District is 'authorized and empowered to acquire by purchase or by the exercise of the right of eminent domain . . . the entire plant, property, franchises, rights and privileges of the Penobscot County Water Company located in or serving the Towns of Orono and Veazie, except its cash assets, amounts receivable, and its land and office building on Forest Avenue in Orono, including all lands, waters, water rights, dams, structures, reservoirs, pipes, machinery, fixtures, hydrants, tools and all apparatus and appliances owned by said company, . . ..' Section 12 of the Act provides that, in case the trustees of the District fail to agree with the Penobscot County Water Company (the Company) upon the terms of purchase of the Company's property involved in the statutory transfer on or before May 1, 1972, the District, through its trustees, is authorized to take the stated property by filing a petition in the clerk's office of the Superior Court of the County of Penobscot on or before November 1, 1972.

Following the acceptance of the proposed District at the referendum election held in Orono and Veazie in October, 1971, a Board of Trustees was appointed to manage this newly created public municipal corporation as required by section 8 of the Act. With the services of retained counsel, the trustees made overtures to the Company for the purpose of reaching an agreement of purchase. Letters exchanged between counsel for the parties proved unproductive and on May 1, 1972, the critical date on which the District's right to exercise the power of eminent domain ripened, no agreement had been concluded.

It was only on October 27, 1972 that the District, through its trustees, filed its petition to condemn the defendant Company's property. ¹ The defendant responded with a motion to dismiss the District's petition and for summary judgment in its favor. Several reasons were alleged in support of the motion to dismiss: 1) the Act (Chapter 67 of the Private and Special Laws, 1971) is unconstitutional for failure to provide just compensation; ² 2) the District did not negotiate in good faith prior to May 1, 1972 as required by the Act; and 3) mandatory statutory requirements in the conduct of the referendum special election were not complied with. The motion for summary judgment is grounded on the alleged failure of the District to negotiate in good faith. ³

The defendant Company's claim of unconstitutionality of the Act stems from the language of section 12 of chapter 67, which provides as follows:

'The first day of May, 1972, shall be the date as of which the valuation aforesaid (of the property) shall be fixed, from which date interest on said award shall run and the net balance of all rents and profits accruing thereafter shall belong to and be paid to said water district as provided for in the final decree of court.'

When legislation comes under judicial scrutiny for determination of its constitutional validity, we must have in mind that all acts of the Legislature, including special and private laws, are presumed to be constitutional, that this presumption is one of great strength and that the burden of showing constitutional infringement rests on the party who claims that the legislative enactment is unconstitutional. In re Spring Valley Development, 1973, Me., 300 A.2d 736, 746; Look v. State, 1970, Me., 267 A.2d 907, 909, 910.

Before legislation may be declared in violation of the Constitution, that fact must be established to such a degree of certainty as to leave no room for reasonable doubt. York Harbor Village Corporation v. Libby, 1928, 126 Me. 537, 549, 140 A. 382.

But, the presumption of constitutionality is not absolute and it must give way when the statutory language shows a clear and undoubted legislative intent running counter to some constitutional inhibition. See Ace Tire Co., Inc. v. Municipal Officers of Waterville, 1973, Me., 302 A.2d 90, 101.

The Court is duty bound to declare invalid an act which violates an express mandate of the Constitution, even if the Legislature presumably found the act expedient or otherwise in the public interest. See In re Milo Water Company, 1930, 128 Me. 531, 149 A. 299; Randall v. Patch, 1919, 118 Me. 303, 306, 108 A. 97.

As stated in Maine Pharmaceutical Association v. Board of Commissioners, 1968, Me., 245 A.2d 271, by Chief Justice Williamson:

'If, however, the act of the Legislature falls clearly beyond the limits of constitutional authority the Court must not hesitate to declare such action void. In so doing we have no concern with the policy of the Legislature or the reasons underlying its decision. It is the Constitution, and the Constitution alone, against which we measure the action of the Legislature.' Id. at 272.

Furthermore, we must bear in mind that statutes purporting to give authority to exercise the sovereign power of eminent domain are in derogation of private rights and are subject to the rule of strict construction against the donee of the power. In re Bangor Hydro-Electric Co., 1974, Me., 314 A.2d 800; Clark v. Coburn, 1911, 108 Me. 26, 78 A. 1107, Ann. Cas. 1913B, 167.

The date of taking is critical in eminent domain proceedings. In Williams v. State Highway Commission, 1961, 157 Me. 324, 172 A.2d 625, 626, it was described as that day on which '(a)ll incidents of proprietorship such as entry, use, occupation, rents and profits . . . inured at once to the condemner' and on which the condemner became entitled forthwith to institute against the condemnees a possessory action to secure the property condemned. From the condemnees' viewpoint, the date of taking in Williams was said to be the day they had become divested of the title to their property and had accordingly become competent to petition for a determination of the damages and to achieve remuneration under the constitution and the statute. Thus, in Williams, where the statute provided that 'the recording of the said description (of the property) shall vest the fee of the described property in the state,' the Court held the date of recording to be the date of taking, notwithstanding the former owners continued to enjoy uninterrupted possession and use of the real estate expropriated and all income therefrom from June 20, 1958, the date of recording, to June 2, 1960, the day of the jury award of damages.

It appears from Williams that, although the State would have been entitled to the rents and profits of the condemned property from the express statutory divestment-of-title date, if it had brought a possessory action forthwith, nevertheless, since it had permitted the condemnees to remain in possession, all it could recover from the former owners would be damages for use and occupation as tenants at sufferance. The condemnees' enjoyment of the rents and profits through the use of the land while tenants at the sufferance of the State was no bar to their recovery of interest on the value of the property condemned from the date of the statutory divestment of title which was considered the date of taking.

The reference Act, like the statute in Williams, in specific terms, states the time when title to the condemned property passes from the Company to the District, but, contrary to the legislative design in Williams where the vesting of title was fixed at an early date in the condemnation process, such as the time of recording of the description of the property taken, the insant Act sets the right to possession and the vesting of title at the end of the judicial proceedings establishing the taking. Indeed, the Act expressly provides that

'(o)n payment or tender by said district of the amount so determined and the performance of all the other terms and conditions so imposed by said court, possession of and title to the entire plant, property and franchises of said company used and usable in supplying water in the Towns of Orono and Veazie shall become vested in said water district.' (Emphasis ours)

Thus, if Williams controls, then, the date of May 1, 1972 could not be considered as the legal date of taking.

On the other hand, the Legislature focused on the May 1, 1972 date as the day certain from which all statutory preliminary steps, required to be taken prior to the formal taking or right to possession and vesting of title, could thereafter be executed. Indeed, under section 12 the District may file its petition to establish the taking, only after May 1, 1972 if, by that time, no agreement has been reached by the parties upon the terms of purchase. Under the statute, a justice of the Supreme Judicial Court, after due notice to the Company, is directed to appoint 3 disinterested appraisers for the purpose of fixing a valuation of the Company's property and, upon motion, to fix among other things a time at which the Company shall file for the inspection of the District the following information:

'First,...