City of Bristol v. Bristol Water Co.

• Decision Date: 26 July 1912
• Citation: 84 A. 314,85 Conn. 663
• Court: Connecticut Supreme Court
• Parties: CITY OF BRISTOL v. BRISTOL WATER CO.

84 A. 314

85 Conn. 663

CITY OF BRISTOL v. BRISTOL WATER CO.

Supreme Court of Errors of Connecticut.

July 26, 1912

Appeal from Superior Court, Hartford County; William S. Case, Judge.

Application by the City of Bristol against the Bristol Water Company under Special Acts 1911, p. 339, § 3, for the appointment of appraisers to appraise the value of the plant property, and franchise of the water company. From a judgment of dismissal, the City appeals. Reversed and remanded.

The application alleges: The legal voters of the city of Bristol on January 17, 1912, duly accepted the provisions of section 3 of No. 352, Sp. Acts 1911, and authorized the construction maintenance, and operation of a municipal water plant. And the said city desires to procure a plant, owned by said city for the purpose of supplying its inhabitants with pure water and to that end desires to purchase the plant, privileges, and franchises of the Bristol Water Company.

That part of said section 3 which is applicable is as follows:

" Sec. 3. (a) The city of Bristol is hereby authorized to construct, establish, and maintain a plant or plants for the purpose of supplying the inhabitants of said city with pure water. ***

" (c) Said city of Bristol shall not exercise any of the powers herein conferred until a vote of said city accepting the provisions of this section and authorizing the construction, maintenance, and operation of a plant to supply the inhabitants of said city with water, shall have been passed by a majority vote of the legal voters of said city voting at a city meeting duly warned and held for that purpose. Should such a vote fail of passage at any such city meeting, no vote on said subject shall again be taken until after the expiration of one year from the date of said meeting.

" (d) In the exercise of the powers conferred by this section, said city of Bristol is hereby authorized to purchase the plant, privileges, and franchises, and all rights and titles connected therewith, of the Bristol Water Company, and upon the passage of the vote provided for in paragraph (c) of this section, said city shall not proceed to install, maintain, and operate a water plant of its own until the following proceedings have been had: The mayor of said city shall bring his petition to a judge of the superior court, setting forth that the city, under the provisions of this section, desires to procure, establish, maintain, and operate a plant, owned by said city for the purpose of supplying the inhabitants thereof with pure water, and to that end desires to purchase the plant, property, rights, and franchises of the Bristol Water Company, and praying such judge to appoint a committee of three disinterested and judicious persons to appraise the value of said plant, property, and franchises of said the Bristol Water Company, which petition shall be served by any proper officer upon the Bristol Water Company by leaving with or at the usual place of abode of the secretary thereof a true and attested copy of such petition at least twelve days before the date on which said petition is made returnable to such judge. Upon the return of said petition, or as soon thereafter as may be, such judge shall, upon due hearing had, appoint said committee, and said committee shall thereupon proceed, after reasonable notice to and hearing of the parties, to make its appraisal of the value of said plant, property, and franchise, and shall file the same in writing with the clerk of the superior court for Hartford county. At a meeting of the legal voters of said city of Bristol, to be held within sixty days after the date of the filing of said appraisal with said clerk of the superior court, the mayor of said city shall cause to be presented to the voters at such meeting, a certified copy of such appraisal, together with a resolution in proper form authorizing the purchase of said plant, property, and franchises of the Bristol Water Company by the city at the appraisal price.

" If a majority of the ballots cast at such meeting shall be in favor of the passage of said resolution the city clerk shall, without delay, file a true and attested copy of said resolution with the secretary of said the Bristol Water Company, and if said company shall neglect or refuse for a period of sixty days after said certified copy has been filed with its secretary as aforesaid, to notify said city that it will sell and deliver to said city, within one year from the date of said notice, its plant, property, and franchises at the price fixed by said appraisal, said city shall proceed, in the exercise of the powers conferred upon it by this section, to condemn and take, for the purpose of supplying the inhabitants of said city with water, said property, plant, and franchises of said the Bristol Water Company in the manner following:

" The mayor of said city shall prefer his petition to any judge of the superior court praying for the appointment by such judge of a committee to appraise the value of the property, plant, and franchises of said company, and such judge shall cause such notice of such application to be given to said the Bristol Water Company as he shall deem proper, and upon proof or such notice and upon hearing, shall appoint three disinterested persons to examine said property, plant, and franchises; and such persons being duly sworn to a faithful discharge of their duty, and after reasonable notice to and hearing of the parties, shall ascertain the value of said plant, property, and franchises and the amount of compensation which the owners thereof shall receive therefor, and report the same in writing to the clerk of the superior court for Hartford county to be by him recorded; and thereupon such judge may confirm the doings of said appraisers and direct said city to pay said sums so appraised to said the Bristol Water Company, in such manner as such judge shall prescribe, in full compensation for said plant, property, and franchises, and upon the compliance with the order of such judge, said city shall take, occupy, have, own, and hold said plant, property and franchises without any liability to any further claim for compensation or damages on the part of the said the Bristol Water Company and the right of the Bristol Water Company to exercise such franchises shall cease.

"Should said city at its said meeting refuse, by a majority of the votes cast at said meeting, to purchase said plant, property, and franchises of the Bristol Water Company, either before or after the first appraisal herein provided for, then it shall not, for a period of one year from the date of said last-named meeting, exercise any of the powers conferred by this action. At the expiration of said period said mayor may prefer his petition to a judge of the superior court for the appointment of another committee and for a new appraisal, and thereupon shall proceed in the manner hereinbefore prescribed for the purchase of said plant, property, and franchises of the Bristol Water Company, and may thereafter proceed to condemn and take the same in the manner hereinbefore provided."

To this application the defendant filed a plea to the jurisdiction and moved to dismiss, on the ground that hearing of said petition and the duty and power of appointing a committee under said act by a judge of the superior court is the imposition upon him of a nonjudicial function, and hence unconstitutional. The said plea was sustained, and the petition dismissed for...