E. B. & A. C. Whiting Co. v. City of Burlington

• Decision Date: 02 October 1934
• Citation: 175 A. 35,106 Vt. 446
• Parties: E. B. & A. C. WHITING CO. ET AL. v. CITY OF BURLINGTON
• Court: Vermont Supreme Court

175 A. 35

106 Vt. 446

E. B. & A. C. WHITING CO. ET AL. v. CITY OF BURLINGTON

Supreme Court of Vermont

October 2, 1934

May Term, 1934.

Municipal Corporation---Rule at Common Law as to Number Required To Validate Act of Indefinite Body---"Common Law"---Common Law Rule as to Effect of Majority Decision in Relation to Constitution and Laws of State---Evidence---Judicial Notice as to Operation of Common-law Rule---Extent to Which Common Law Applies Where Adopted---Construction of Municipal Charter as to Question of Proportion of Votes Necessary To Decide Matter of Issuance of Improvement Bonds---"Allowed"---P. L 3631---Implied Charter Right---Status of Municipal Corporation---Construction of Charter of Municipal Corporation Generally---Insufficiency of Express Grants in Municipal Charter To Justify Implication of Rule of Majority Vote on Improvement Bond Issue---Purpose of Statute Requiring Affirmative Two-thirds Vote on Question of Issuance of Improvement Bonds---Construction of Statute with Reference to Object and To Carry into Effect Legislative Intent---Rights of Municipal Corporation Not Affected by Statute Relating to Indebtedness as Governed by Express Grants of Legislature, Bather than by Implied Rights---Change of Common-law Rules or Principles by Legislature---Implied Repeal of Common Law by Statute Inconsistent Therewith, or Which Undertakes To Revise and Cover Whole Subject-matter---Intention of Legislature in Enacting Chapter 150 of Public Laws-Effect of Express Provision of P. L. 3606 Requiring Two-thirds Vote of Those Voting To Authorize Public Improvements and Issuance of Bonds Therefor on Common-Law Rule---Presumptions---Insufficiency of Majority Vote of Voters at Special Meeting of Corporation To Authorize Issuance of Improvement Bonds---Injunction.

1. At common law, where act is to be done by indefinite body, it is valid if passed by majority of those present at legal meeting, no matter how small portion they may constitute of whole number entitled to be present.

2. Common law of Vermont is so much of unwritten law of England as amended or altered by acts of Parliament, which was in force at time of migration of settlers to this country, as is applicable to local situation and circumstances and not repugnant to State Constitution or laws, and such other acts of Parliament passed since migration which have been adopted by courts of State.

3. Common-law rule that decision of majority of constituent body of municipal corporation voting at legal meeting shall be taken as will of whole, held not repugnant to Constitution or laws of State.

4. Supreme Court will take judicial notice of fact that meetings of constituent bodies of municipal corporations of State have always been controlled by common-law rule of majority vote when there was no charter or statutory provision providing otherwise.

5. Generally, in states where common law has been adopted, it prevails except as modified, changed, or repealed by statute or in so far as it is not inconsistent with constitution or statutes or institutions of state, and where, except for common law, proper remedies for injustice and wrong, and for redress of grievances, would not be furnished.

6. Common law adopted in Vermont is "rule of decision" in all courts, by which is meant that such common law is law of State, and is to be administered as such by its courts; and, except as modified or repealed by statute, its rules and principles determine rights of, and prescribe rules of conduct for, all persons, to be followed and applied by courts in all cases to which they are applicable.

7. Charter of city of Burlington and act relating to issuance of municipal improvement bonds, held not to provide as to proportion of votes necessary to decide question of such bond issue at meeting of legal voters, being silent on subject.

8. Word "allowed," as used in P. L. 3631, providing that chapter relating to municipal indebtedness should not affect rights "allowed a municipal corporation by its charter, nor any rights granted by special act of the Legislature," held used in sense of "granted" or "given" to municipal corporation, rather than right inferred to supply an omission.

9. Common-law rule that decision of majority of constitutent body of municipal corporation voting at legal meeting shall be taken as will of whole, Held not implied charter right.

10. Municipal corporation is creature of Legislature, and possesses only such rights or powers as are expressly granted to it by Legislature, or fairly implied in or incident to those expressly granted because necessary to carry latter into effect.

11. Generally, charter of municipal corporation is to be strictly construed against it, presumption being that Legislature granted in clear and unmistakable terms all that it intended to grant.

12. Charter of city of Burlington, held not to expressly grant to city powers or rights from which rule of majority vote on question of issuance of municipal improvement bonds could be implied because necessary to carry powers expressly granted into effect.

13. One of principal objects of statute requiring affirmative vote of two-thirds of those voting on question authorizing issuance of bonds for municipal improvements is to make it less easy for municipal corporation to pay for public improvements by issuance of bonds, by requiring assent of such proportion of those voting on question before incurring such indebtedness, which object would be defeated by holding that charter or special act authorizing bonding, but silent on subject of proportion of vote required, by implication authorized bonding by majority vote, but Legislature did not intend to deprive municipal corporation of right to bond by majority vote, or some other vote, when that right had previously been expressly granted to it by charter provisions or by special act of Legislature, or might thereafter be so granted.

14. Statute is to be construed with reference to its manifest object, and, if language is susceptible of two constructions, one of which will carry out and other will defeat such manifest object, language should receive former construction.

15. Statute is to be construed so as to carry into effect intention of Legislature, which is to be ascertained from language of act taken as whole, and from its application to existing circumstances and necessities.

16. Rights of municipal corporation which are not affected by statute relating to municipal indebtedness are, under P. L. 3631, only such rights as are expressly granted to it by its charter provisions or by a special act of Legislature and not implied rights.

17. While common law or particular principles or rules thereof may be repealed or altered by Legislature, such rules are not to be changed by doubtful implication, nor overturned except by clear and unambiguous language.

18. Common law is impliedly repealed by statute which is inconsistent therewith or which undertakes to revise and cover whole subject-matter.

19. Legislature in enacting Chapter 150 of Public Laws intended that provisions thereof should regulate and control whole subject-matter of voting on and issuance of bonds by municipal corporations to pay for public improvements, and, particularly, as to proportion of vote cast by legal voters of corporation that is necessary to authorize issuance of such bonds.

20. Express provision of P. L. 3606, requiring two-thirds vote of those voting to authorize public improvements and issuance of bonds to pay therefor, because so inconsistent with common-law rule of majority vote, held to abrogate such common-law rule, except when charter provisions or special act of Legislature expressly empowers municipal corporation to decide question by majority vote.

21. Supreme Court will not assume that Legislature intended act, authorizing municipal corporation to issue bonds to raise funds for public improvements, should provide in itself necessary rule as to popular vote required to give it effect.

22. Where act authorizing municipal corporation to bond to raise funds for public improvements was silent as to proportion of vote required to make it effective, it cannot be assumed that Legislature intended majority vote to be sufficient, since silence is negation, and Legislature intending that question should be decided by majority vote would have so stated.

23. Where charter of city and act authorizing such municipal corporation to bond to raise funds for public improvements were both silent as to proportion of vote required to make act effective, held that requirement of P. L. 3606, that two-thirds vote of all votes cast was necessary to decide such question, controlled at special meeting called to see whether voters would authorize such bond issue; and that majority vote, but less than two-thirds of voters voting thereat, did not authorize issuance of bonds.

24. Under such circumstances, held that plaintiff's bill of complaint presented case which gave right to relief by injunction to restrain municipality from issuing public improvement bonds authorized by a majority but by less than two-thirds of the voters voting on such question at a special meeting called for that purpose.

BILL IN CHANCERY seeking to enjoin city of Burlington from issuance of bonds for public improvements voted by a majority of the voters present at a special meeting of the legal voters called for that purpose. Heard on demurrer to bill after the September Term, 1933, Chittenden County, Davis, Chancellor. Demurrer sustained, temporary injunction dissolved, and bill dismissed. The plaintiffs appealed. The opinion states the case.

Decree reversed, and cause remanded.

Chas. H. Darling and H. B. Shaw for the plaintiffs.

Theodore E. Hopkins for the defendant.

Present POW...