Braintree Water Supply Co. v. Town of Braintree
| Decision Date | 06 April 1888 |
| Parties | BRAINTREE WATER-SUPPLY CO. v. TOWN OF BRAINTREE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
April 6, 1888
Robert M. Morse, Jr., and Marcus Morton, Jr., for plaintiff.
Upon the facts stated, the company is a valid corporation. If not it is not open to the respondents, in these proceedings, to attack the validity of its organization. See Society v Davis, 3 Metc. 133. See, also, Bank v. Jenks, 7 Metc. 592; Institution v. Harding, 11 Cush 285. See, also, Topping v. Bickford, 4 Allen, 120; Insurance Co. v. Jesser, 5 Allen, 446; Newcomb v. Reed, 12 Allen, 362; Society v. Draper, 97 Mass. 349; Walworth v. Brackett, 98 Mass. 98; Insurance Co. v. Frothingham, 122 Mass. 391; Institution v. Burnham, 128 Mass. 458; Bank v McDonald, 130 Mass. 264; Commissioners, etc., v. Bolles, 94 U.S. 104. Section 10, Acts 1886, c. 269, provides that the town "shall have the right, at any time during the continuance of the charter hereby granted, to purchase the franchise, corporate property, and all the rights and privileges of said corporation," etc. Whether the town, in voting to buy, was merely making an offer, or whether it was exercising the right of eminent domain, is immaterial. For, if it was an offer, it was accepted by the company, and a valid contract existed, to the performance of which the town is bound; and, if it was the exercise of the right of eminent domain, rights thereupon vested in the company which entitle it to maintain this petition. The petition alleges that the company informed the committee of the town that it would accept the agreement of the town to buy, and that it would sell to the town. Burt v. Brigham, 117 Mass. 307; Mills v. Waltham, 126 Mass. 422. The more reasonable construction of the statute is that it authorized the town to take the property of the company by the exercise of the right of eminent domain, and that the term "to purchase" was used in that sense. This is evidently the construction put upon it by the town and its officials, and by the company. Burt v. Insurance Co., 106 Mass. 356. There is no provision in the statute implying that the company has any option in the matter. The statute authorizes the doing of an important public work which is ordinarily done by the municipality itself. It is not to be supposed that the legislature intended that the private wishes or interests of a private corporation should prevent the town from assuming this work. Certainly, it did not so provide in express terms. See Pub.St. c. 27, § 27. The right of the petitioners to the appointment of commissioners is not affected by the vote of the town subsequent to the filing of the petition. In this case it is impossible, without imputing an unauthorized and unprecedented meaning to words, to say that the phrase, "I hereby notify and warn," which clearly indicate only a present intention to notify and warn, is equivalent to a declaration that this service had been performed. Perry v. Dover, 12 Pick. 206. There is no authority in the statute for an officer amending his return, and therefore his attempt to do so, made after the petition was filed, is of no avail. If the action of the town, January 12, 1887, put it under contractual obligations to the company, it could not lawfully rescind the vote at a subsequent meeting, even if it had been held before the petition was filed. Where a town had voted to pay to the plaintiff an amount advanced by him to the town, it was held that the town could not at a subsequent meeting rescind the vote. Nelson v. Milford, 7 Pick. 18; Hall v. Holden, 116 Mass. 172. A town cannot repudiate a contract made under a vote appointing a committee with authority to expend money for the repair of fire-engines. Allen v. Taunton, 19 Pick. 485. Even when the vote of rescission was passed at an adjournment of the meeting when the original was passed, yet, when work had been commenced under the contract, it was held that the vote of rescission did not relieve the town from liability. Id. See, also, Woodbridge v. Cambridge, 114 Mass. 483. If the action of the town was an exercise of the right of domain, and the town had acquired the property, it could not subsequently repudiate its liability therefor. Whatever right the town might have had to repudiate the obligation created by the vote of January 12th, it could not do so after the company had acted upon this vote by filing its petition for the appointment of commissioners. If it could do this the day after the petition was filed, it might do it at any time thereafter, even after commissioners had been appointed, and hearings had been had before them.
Benj. F. Butler and Edward Avery, for defendant.
The tenth section of chapter 269, Acts 1886, does not confer on the town of Braintree the right of eminent domain. The right to exercise this power cannot be inferred, but must be expressly conferred in clear, certain, and unambiguous terms. Glover v. City of Boston, 14 Gray, 282; Wilson v. Lynn, 119 Mass. 174. There is no express provision under which the water company can secure or compel payment. Without these provisions, the act would be unconstitutional, and the legislature will never be presumed to have enacted an unconstitutional law. Railroad Co. v. County Com'rs, 127 Mass. 52; Bridge v. County Com'rs, 103 Mass. 120; Railroad Co. v. Middlesex, 7 Metc. 78. In the case of Talbot v. Hudson, 16 Gray, 417, a sufficient appropriation was found to sustain the constitutionality of the act. The act simply confers on the town the authority to contract for the purchase of the franchise and property of the corporation, which, but for legislative permission, it could not do, and on the water company the power to sell, which, but for like authority, it could not do. There is no evidence that the corporation, by its aggregate action or by its directors, ever assented to a sale to the town, or authorized any proposition to sell. The corporation is empowered to sell. Without some action on its part, no valid contract or bargain and sale could be completed. No action was taken by it, or by its board of directors, or by any agent empowered to act for it, and therefore there was no agreement or meeting of the minds of the two parties authorized by the statute to contract, even on the first step of negotiation, i.e., "Will the town buy, and the corporation sell?" Any claim by the petitioning corporation that there was a mutual agreement between the town and the company on the only point made by the statute essential to a complete contract utterly fails of proof. We respectfully submit there was no legally organized or existing corporation competent to act. The provisions of Pub.St. c. 105, § 9, were not complied with in the organization. If the statute conferred on the town the right to purchase the franchise and property of the water-supply company, it seems perfectly clear that no contract was made between the parties. The proposal made by the town in its vote was not submitted to the corporation, or to its board of directors, and was not accepted nor assented to by the corporation. The nature and value of the property brings the contract within the statute of frauds, and the requirements of that statute were not complied with. Before anything had been done under the vote, before the rights of the water-supply company had been in any way affected, the vote was rescinded, and the whole matter stood as if no proposal had ever been made or vote passed. Withington v. Harvard, 8 Cush. 66; Hunneman v. Grafton, 10 Metc. 454; Reed v. Acton, 117 Mass. 384; Damon v. Granby, 2 Pick. 355. See, also, as bearing on the principle, Aspinwall v. Commissioners, 22 How. 364; Concord v. Bank, 92 U.S. 625. The vote passed by the town, January 12, 1887, was not a vote to then purchase. Taken in connection with its concurrent action, it was the expression of a willingness--a proposal--to purchase at some future time, dependent on the report of its investigating committee. The assent of the town, required by the tenth section, is to a contract which had been definitely settled on, and, for its completion, needed only this assent. The appointment of the committee to negotiate was but a part of the proposed action of the town. Its report, even if accepted, would not have been binding on the town unless it had set forth that a contract had in fact been made. Carroll v. Society, 125 Mass. 565; Arlington v. Pierce, 122 Mass. 270. The vote of the town was not a taking under the right of eminent domain. It was not a contract to purchase. The corporation did not act on this vote, and, having nothing to sell that the town was authorized to buy, could not have made a valid contract with the town if it had assented. The contingency named in the statute which authorized this court to appoint commissioners has not occurred; and on the facts, and the law applicable to them, the petition was properly dismissed.
By St.1886, c. 269, the Braintree Water-Supply Company was incorporated for the purpose of furnishing the inhabitants of the town of Braintree with water. The act of incorporation conferred upon the company extensive powers, and also secured to the town the right to obtain the property and franchise of the corporation, and to control the business of supplying its inhabitants with water whenever it should choose so to do. Section 10 of this act is as follows: ...
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