Aime Valcour v. Village of Morrisville

Decision Date06 January 1932
Citation158 A. 83,104 Vt. 119
CourtVermont Supreme Court

November Term, 1931.

Pleading---Sufficiency of Demurrer as to Being Specific---Municipal Corporations---Powers Possessed and Limitation Thereof---Acts 1894, No. 185, 9, Acts 1910, No. 313 16-Presumptions---Status of Municipality Operating Public Utility---Right To Sell Surplus Electricity---Presumption That Village Acted Lawfully---Relations of Municipality Selling Surplus Electricity with Its Customers---Liabilities Involved in Right of Village To Contract for Sale of Electricity---Limitation of Application of Village By-laws and Municipal Ordinances---Village By-law Relating to Duties and Risks Assumed by Consumer of Electricity Supplied by Village, Construed---Authority Conferred upon Village by Right To Sell Surplus Electricity---Effect of Demurrer as to Earlier Defective Pleadings.

1. In ACTION OF TORT against municipality supplying electricity to plaintiff residing outside its corporate limits, for damage to plaintiff's buildings from fire by negligently permitting escape of such electricity from defendant's high voltage line, demurrer to plaintiff's replication held sufficiently to specify reason why pleading demurred to was insufficient.

2. Municipal corporation possesses, and can exercise, only those powers granted in express words, those necessarily or fairly implied in or incident to powers expressly granted, and those essential to accomplishment of declared objects and purposes of corporation.

3. Under Acts 1894, No. 185, 9, and Acts 1910, No. 313, 16 defining its powers with respect to manufacturing and furnishing electric current, municipal corporation held to have no legislative authority for general distribution of electric current to parties outside its corporate limits.

4. Any fair, reasonable, substantial doubt which exists regarding authority of municipal corporation to supply electric current must be resolved against corporation.

5. In acquiring and operating any kind of public utility, municipal corporation acts in private or proprietary capacity.

6. Municipal corporation holds property comprising public utility, primarily, for its own and its inhabitants' use and if its operation for such primary use produces a surplus it may make disposal thereof, either within or outside its corporate limits, without special legislative authority, such right being purely incidental to its primary use.

7. Village operating electric plant held to have right to dispose of its surplus electricity outside of its own limits and to extend its equipment as might be necessary for that purpose.

8. Contrary not appearing, it will be presumed that village in selling electricity to customers outside corporate limits confined its sales to surplus electricity, and not that it acted unlawfully.

9. Village selling surplus electricity outside its corporate limits was not acting as public utility, but its relations with its customers were purely contractual.

10. Right of village to contract for sale of its surplus electricity carried with it corresponding liability to perform such contract as it made or respond in damages for failure so to do.

11. By-law of village selling surplus electricity outside its corporate limits, held to have no force outside such limits unless actually embodied in terms of contract.

12. Ordinances and by-laws of municipal corporation have no extraterritorial force, unless otherwise expressly provided by statute.

13. Provision in by-law of village selling electricity that consumer should keep all fixtures and apparatus in good repair at all times and not allow any waste, held to mean only that consumer should keep his own equipment in such condition as to prevent needless loss of electricity.

14. Provision in such by-law that consumer assumed risk of accidents and unavoidable shortages, held to be intended to relieve village from liability for any unforeseen or accidental interruption of service due to break-down of its plant, equipment, etc., rather than to absolve it from liability for damages from negligent performance of its contract.

15. Right of village to sell its surplus electricity gave it authority to deliver electricity in saleable quantities, and to do whatever was necessary to enable village to deliver electricity in such quantities.

16. In action of tort against municipality supplying electricity to plaintiff residing outside its corporate limits, defendant's demurrer to plaintiff's replication held properly overruled, where village by-laws and its alleged lack of authority, pleaded by defendant in its answer, constituted no defense to action, since demurrer opens whole record so that judgment must be against first party whose pleadings are defective in substance.

ACTION OF TORT against municipality supplying electricity to plaintiff residing outside its corporate limits. Answer, containing special defenses, replication by plaintiff, and demurrer by defendant to replication. Hearing on demurrer by the court in vacation after the June Term, 1931, Lamoille County, Sherburne, J., presiding. Demurrer overruled, and the defendant excepted. The opinion states the case.

Judgment affirmed with costs to plaintiff in this court, and cause remanded.

F. G. Fleetwood, Charles F. Black, and Guy M. Page, for the defendant.

The defendant was without power to enter upon the undertaking to furnish electricity, and the necessary equipment incident thereto, to plaintiff who resided outside the corporate limits of the village, having only the powers prescribed by its charter, and, in absence of direct words of authorization otherwise, power to sell electric current being limited to supplying private individuals within the municipality. Rand v. Marshall, 84 Vt. 161, 164; Swanton v. Highgate, 81 Vt. 152; Sargent v. Clark, 83 Vt. 523, 525, 526; Stanley v. Baltimore, 146 Md. 277, 126 A. 151; Farwell v. Seattle, 43 Wash. 141, 86 P. 217, 10 Ann. Cas. 130; Lawrence v. Methuen, 166 Mass. 206, 44 N.E. 347; Sweetwater v. Hamner (Tex. Civ. App.), 259 S.W. 191; Childs v. Columbia, 87 S.C. 566, 70 S.E. 296; Becker v. LaCross, 99 Wis. 414, 75 N.W. 84, 40 L. R. A. 829; Duncan v. Lynchburg, 2 Va. 700, 34 S.E. 964, 48 L. R. A. 331; Switzer v. Harrisonburg, 104 Va. 533, 52 S.E. 174, 2 L. R. A. (N. S.) 910; Richards v. Portland, 121 Ore. 340, 255 P. 326, 329; Hyre v. Brown, 102 W.Va. 505, 135 S.E. 656, 49 A. L. R. 1230, 1233, and note.

Doubtful charter provisions are not to be construed as conferring on a municipality the power to sell electricity beyond its boundaries, but the greatest explicitness is required. Sargent v. Clark, supra; Farwell v. Seattle, supra; Lawrence v. Methuen, supra; Childs v. Columbia, supra; Richards v. Portland, supra.

A municipal corporation authorized to sell current beyond its boundary is, presumptively, at least, empowered to sell only surplus current; and by a special contract rather than as the operator of a public utility. Childs v. Columbia, supra; Richards v. Portland, supra; 19 R. C. L. 790; Hamner v. Sweetwater, supra; Dyer v. Newport, supra.

The words "furnish electricity" denote an act which is complete when the current passes to the consumer, and the furnishing, selling, and installing of appliances and equipment to a municipality's customers or others is a separate business incident to the use, and not to the supply, of energy, and express powers to furnish certain equipment are not to be construed beyond their express terms. Atty. Gen. v. Leicester, L. J., 80 C. D. 21; Atty. Gen. v. London E. S. Co., L. J., 95 C. D. 1, Ch. Div. L. R. 1926, page 542; Atty. Gen. v. Sheffield, 106 L. T. 367; Keene v. Waycross, 101 Ga. 588, 29 S.E. 42.

By the great weight of authority, the operator of a public utility owes no duty of inspection of its customers' equipment and apparatus, and is not liable for defects in equipment in a building which it serves with current. Memphis Consolidated G. & E. Co. v. Spears, 113 Tenn. 83, 81 S.W. 595; National Fire Ins. Co. v. Denver Cons. Elec. Co., 16 Cal.App. 86, 63 P. 949; Drury v. E. St. Louis L. & P. Co., 194 Ill.App. 121; McFerran v. Merchants, etc., Co., 81 Ind.App. 653, 131 N.E. 544; Frazier v. Geneva, 203 Ill.App. 566; Perry v. Ohio Valley Elec. Co., 70 W.Va. 697, 74 S.E. 993; Fickeizsen v. Wheeling Elec. Co., 67 W.Va. 335, 67 S.E. 788, 27 L. R. A. (N. S.) 897; Kuhlman v. Water, Light & Transit Co., 307 Mo. 607, 271 S.W. 788, 796; Minneapolis General Electric Co. v. Cronon, 166 F. 651, 92 C. C. A. 345, 20 L. R. A. (N. S.) 816, 820; Hoffman v. Leavenworth Light H. & P. Co., 91 Kans. 450, 138 P. 362, 50 L. R. A. (N. S.) 574, 579; Mellon Weaving Co. v. Northumberland Gas & Elec. Co., 96 A. 135, 251 Pa. 79; Brunelle v. Lowell Elec. Lt. Corp., 194 Mass. 407, 80 N.E. 466; Smith's Admx. v. Middlesboro Elec. Co., 164 Ky. 46, 174 S.W. 773.

Defendant is not liable for any torts committed while engaged in the ultra vires undertaking alleged, as the negligence alleged is the negligent performance of a contract duty, and, if contract is void for want of capacity there is no resulting duty, since no duty could arise from a void contract, and without a duty there can be no right of recovery. Bottum v. Hawkes, 84 Vt. 370, 373; Coburn v. Swanton, 94 Vt. 168, 170; Amble v. Vermont A. P. Corp., 101 Vt. 448, 450, 451; Foxen v. City of Santa Barbara, 134 P. 1142, 166 Cal. 77; Metropolitan Stock Ex. v. National Bank, 76 Vt. 303, 308; 19 R. C. L. 1061, 1134, 409, and 1138, 414; McQuillan Municipal Corporations (2nd ed.), vol. 3, page 807, 2808, and pages 817--819, 1274; Gross v. Portsmouth, 68 N.H. 266, 33 A. 256, 73 A. S. R. 586; Rees on Ultra Vires, pages 291, 292, 222; Switzer v. Harrisonburg, 104 Va. 533, 52 S.E. 174; Dillon on Municipal...

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