Howard v. City of Chicopee

• Decision Date: 03 January 1938
• Citation: 299 Mass. 115,12 N.E.2d 106
• Parties: HOWARD et al. v. CITY OF CHICOPEE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 115

12 N.E.2d 106

HOWARD et al.

v.CITY OF CHICOPEE et al.

Supreme Judicial Court of Massachusetts, Hampden.

Jan. 3, 1938.

Petition in equity by Frank D. Howard and others against the City of Chicopee and others. From a decree dismissing the bill, the petitioners appeal.

Decree affirmed.Appeal from Superior Court, Hampden County; Williams, Judge.

C. R. Branch, of Boston, J. P. Kirby, of Chicopee, and C. Ryan, of Boston, for appellants.

B. W. Warren, of Boston, J. M. Healy, of Springfield, T. A. McDonnell and S. F. Ciosek, both of Chicopee, J. S. Begley, of Holyoke, and D. Starr, of Boston, for appellees.

RUGG, Chief Justice.

This petition in equity by fifteen taxable inhabitants of Chicopee under G.L(Ter.Ed.) c. 40, § 53, was filed on January 13, 1936. Its object was to enjoin Chicopee and various other respondents who were officers of that city from making expenditures of money and from doing any other act toward carrying out a purported contract between that city and the Holyoke Water Power Company for the supply of electricity by the latter company for distribution through the plant of the city. The petition of that company to be joined as a party respondent was granted and it filed an answer and participated in the trial. The case was heard by a judge of the Superior Court, who made findings and rulings. The testimony is reported. A final decree was entered dismissing the petition. The petitioners excepted to rulings made and appealed from the final decree.

Material facts are chiefly in the record of the appeal. The respondents filed a motion to dismiss the appeal so far as it relates to certain matters alleged to have become moot. The petitioners filed an admission of certain facts not set out in the main record. These admissions are accepted as true. The petitioners admit that on or about July 10, 1936, there was executed a second contract between Chicopee and the Holyoke Water Power Company, which made some changes and avoided some difficulties in the earlier contract dated December 20, 1935. The contract of July 10, 1936, contained a provision as to hours of labor in conformity to the requirements of statute and was accompanied by a bond, which was duly approved.

The facts material to the grounds of this decision are these: The petitioners are taxable inhabitants of Chicopee. That city is the owner of a municipal lighting plant and is and has been engaged for a number of years in the distribution, but not in the manufacture, of electricity for light and power among its inhabitants. It maintains a substation in connection with distribution. The mayor of Chicopee was authorized by St.1907, c. 397, to appoint an electric light board of three members. Such board was appointed and has since performed its duties. On December 20, 1935, the original contract was executed between Chicopee through its appropriate officers and the Holyoke Water Power Company (hereafter called the Holyoke company) providing that the Holyoke company supply electricity to the municipal lighting plant for a period of fifteen years beginning on August 1, 1936. At the time of the execution of the contract no bond was filed, but on January 14, 1936, a surety company bond was filed with the city treasurer of Chicopee together with a copy of the contract. This bond was approved by the mayor. The contract of July 10, 1936, was accompanied by a bond which was approved by the mayor. It covered the same general ground as that of December 20, 1935. The contract of July 10, 1936, provided for a supply of electricity by the Holyoke company for the municipal plant of Chicopee. That is the contract under which the parties are operating. The real question is whether the petitioners are entitled to relief with respect to that contract. There has been no vote of the board of aldermen authorizing or approving the contract. No appropriation has been made by the board of aldermen for carrying it out. Since 1917 the Turners Falls Power and Electric Company had been furnishing electricity to the city under a contract which was to expire on July 31, 1936. The Holyoke company has a plant for the manufacture of electricity located in Holyoke across the Connecticut River from Chicopee. The contract here in question provides for the delivery of electricity at the boundary line between Holyoke and Chicopee, which is substantially in the middle of the Connecticut River. At no time since 1903 has the Holyoke company furnished electricity to or in Chicopee, except that at a single point it is and has been transferring power with the Turners Falls Power and Electric Company. That company was supplying electricity to several private customers in Chicopee. Without reciting the terms of the contract in question, it is enough to say that it provides for the delivery of electricity to be conducted from the city line, a distance of about four miles, to a substation of the city, where it will be transformed for distribution. The cables which will carry the current to the substation will be supported by poles belonging to Chicopee. The estimated cost of the cables is $100,000, of their erection from the point of delivery to the substation $12,000, and of installing transformers and doing other necessary work $45,000. The electric light board of Chicopee has at its disposal $146,000, designated as the ‘Depreciation Fund,’ and $63,000 designated as the ‘Construction Fund.’ These funds are set up and maintained in accordance with G.L.(Ter.Ed.) c. 164, § 57. The ‘Construction Fund’ is a convenient subdivision of the ‘Depreciation Fund’ and is made up from the annual surplus from the latter fund. No authority has been given by the board of aldermen of Chicopee to the Holyoke company to enter the city since 1903, or to sell power or electricity to the city. No pole locations in Chicopee have been granted to the Holyoke company. In December, 1914, Chicopee accepted St.1913, c. 822, whereby eight hours was fixed as the length of the day of labor for its employees. The contract here assailed has not been approved by the department of public utilities.

The Holyoke company was authorized by St.1903, c. 350, § 1, as amended by St.1909, c. 152, ‘to manufacture electricity for power purposes, * * * and to sell and distribute the same in any of the cities and towns within the counties of Hampden or Hampshire, upon receiving the approval of the mayor and aldermen of any such city * * * except-First. That it may sell to any city * * * [within said counties] which has established or may hereafter establish a municipal lighting plant, and any such city * * * may purchase of said company electricity in any quantity and for any purpose for which such city * * * can legally use the same.’ This provision of the statute does not require the approval of the board of aldermen to the contract in question. The Holyoke company under that contract does not ‘sell and distribute.’ It simply sells electricity to Chicopee, which alone distributes the electricity thus purchased. Such approval is not necessary in a sale of electricity to a municipal electric lighting plant. The authority is express to make such sale without approval. Such approval is made mandatory only in instances where the Holyoke company sells and distributes electricity within a city or town to a purchaser which is not a municipal lighting plant. It is not necessary to consider whether the sale taking place under the contract at the boundary between the two cities was a sale in Chicopee. G. E. Lothrop Theatres Co. v. Edison Electric Illuminating Co. of Boston, 290 Mass. 189, 195 N.E. 305.

The contention of the petitioners is untenable to the effect that the authority of the Holyoke company to make such sales as are called for by the contract has expired by reason of the terms of St.1903, c. 350, § 5. The words of that section are: ‘The right to sell or distribute electricity under the provisions of this act shall cease at the end of ten years after the passage of this act, in every city...