Hugh H. Hawkins v. Vermont Hydro-Electric Corporation

• Decision Date: 07 October 1924
• Citation: 126 A. 517,98 Vt. 176
• Parties: HUGH H. HAWKINS v. VERMONT HYDRO-ELECTRIC CORPORATION
• Court: Vermont Supreme Court

126 A. 517

98 Vt. 176

HUGH H. HAWKINS v. VERMONT HYDRO-ELECTRIC CORPORATION

Supreme Court of Vermont

October 7, 1924

May Term, 1924.

APPEAL from the decision and order of the Public Service Commission Bennington County, granting prayer of petitioner for service by a public service corporation engaged in the distribution and sale of electricity. The petitionee excepted and appealed. The opinion states the case. Exceptions sustained order vacated, and petition dismissed.

Exception sustained, the order of the Public Service Commission is vacated and set aside, and petition is dismissed with costs to the petitionee.

Stickney Sargent & Skeels and Frank K. Foster for the petitionee.

Present: WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

WATSON

Statement by Chief Justice WATSON: This is a petition brought to, and the facts were found by, the Public Service Commission. The facts stated below and in the opinion are taken from those so found including exhibits made a part thereof. The petitioner is a resident of Manchester Depot so-called, in the town of Manchester, this State, and owns and occupies with his family, a house there situated. The petitionee is a public service corporation organized under the general laws of the State, engaged under its expressly authorized power in the generation and distribution of electric current for light, heat, and power in Manchester and other localities in the State, and having a distribution system in Manchester Depot.

Early in the summer of 1923 the petitioner engaged one Marsden, a local electrical contractor, to wire his house and equip the same with facilities for electric lighting. This work was undertaken and completed by Marsden. On the completion of the wiring job, application was made to the petitionee by the petitioner to connect his house with the former's distribution lines so as to provide the latter with the necessary electrical current for lighting his premises, but the application was not in writing in compliance with rule (1) of the petitionee's "Rules and Regulations for Electric Light and Power." This application was refused by the petitionee on the ground fully stated in the opinion.

It was claimed by the petitionee that the place of entrance into the petitioner's house as located by him, was inconvenient and expensive to the petitionee and made it necessary to place its connecting wires under the eaves of the house where damage was likely to result from ice and snow from the roof; but the petitioner offered to change the place of entrance as suggested by the petitionee and that issue was left to be agreed upon by the parties and so was not further considered.

The Public Service Commission ordered that when the place of entrance into petitioner's house is arranged as suggested by the petitionee, the latter shall make the necessary connections and furnish to the petitioner electric current to meet his requirements.

The petitionee excepted to the various holdings of the Commission mentioned in its exceptions, and appealed from the foregoing order and decree--thus passing the case to the Supreme Court.

The petitionee excepted to certain legal propositions stated by the Public Service Commission in the abstract and basing its conclusions thereon, but as our concern is limited to the requirements of the case in hand we state such propositions in their concrete form and treat them accordingly.

Exception was saved to each of the holdings by the Commission that under the Constitution of this State the petitioner could pipe his house for electric lights in any manner he chose; and that, standing on his constitutional rights, he could adopt any system of wiring whatsoever, unless some lawfully constituted authority had prescribed a different method.

Considering the first question as applied to this case, the legal proposition is sound only when stated in connection with conditions precedent governing the petitioner's right to be served by the petitionee, a corporation engaged in the kind of public service sought by him; for "those who wish service must always put themselves in a proper position to demand service; and until these conditions precedent are complied with, there is no present obligation to serve such persons." 1 Wyman, Pub. Serv. Corp., § 390; Atlantic Terminal Co. v. American Baggage & Tr. Co., 125 Ga. 677, 54 S.E. 711; Burrowes v. Chicago B. & Q. Ry. Co., 87 Neb. 142, 126 N.W. 1084, 34 L. R. A. (N. S.) 223. Mr. Wyman says (section 406): "That the supplying companies are under a general obligation to supply all householders living within the district which the company has professed to serve is therefore plain. But there are conditions precedent to these services, also, which it will be reasonable for the company to impose, under the circumstances. The service of such householders is undertaken at the premises, and the applicant must be ready with his piping or his wiring, as the case may be, properly arranged to receive the supply at the outer wall. As has been seen, the supply companies undertake their service generally only to those applicants whose premises are properly equipped so as to receive the service in question." And the same author says (section 417): "A service company may impose regulations upon the making of connections with its system." See Public Service Corp. v. American Lighting Co., 67 N.J.Eq. 122, 57 A. 482.

What we have here said would apply with equal force to the second proposition, were it not for its concluding provision, "unless some lawfully constituted authority had prescribed a different method." In view of this provision, there may well be considered in connection with the second proposition the question of the power of the petitionee to adopt regulations for the conduct of its business and the operation of its plant.

The Commission correctly held that G. L. 5066, as amended by No. 129, Acts of 1919, and by No. 92, Acts of 1923, pertains solely to the subject-matter of rates. It has no relation to regulations affecting precedent conditions a substantial compliance with which may be made essential to an applicant's right of service. The Legislature has not seen fit to prescribe regulations of this character, nor to place express restrictions upon what a public service corporation may do in such behalf by the common law, or under implied powers fairly regarded as incidental to its express powers granted. The Commission states with substantial accuracy the general rule of law in this respect; but it does not recognize that the implied powers of the petitionee are broad enough to authorize it to adopt regulations, essentially conditions precedent to be performed by the applicant before he is entitled to the service demanded and before the former can be required by law to supply such service. That the question here stated is at the "parting of the way" is seen from the following findings of fact and holdings by the Commission:

"It is true that in the use of such a powerful and destructive elemental force as electricity every reasonable precaution ought to be taken to protect the users and the public; and the rules of the respondent (petitionee) which require the grounding of both the metal conduit and the service wires contained in them, separately, would be reasonable and proper rules to be prescribed and insisted upon by competent authority; but the respondent (petitionee) could not arrogate to itself authority to thus indicate to the complainant (petitioner) as to the use of that which was his own, and the Legislature had not conferred it. "Rules requiring information as to the quantity of current, the location of the premises, and the place of entrance, etc., are reasonable * * * and it is not unreasonable to require that information to be in writing upon blanks furnished by the respondent (petitionee)."

But in the same connection the Commission held that the petitionee had no power to dictate to the petitioner as to the kind of entrance switch box and other appliance which should be installed in his house, or whether and in what manner the same should be equipped with ground connections before the petitionee could be required to furnish service. To this an exception was saved.

By its franchise the petitionee is authorized to generate, distribute, and supply electricity to the public, and to individuals for heating, lighting, or power purposes; and under the provisions of G. L. 5689, it shall, when requested so to do, at all reasonable times, sell and distribute the same to any and all persons, companies, etc., desiring to use the same within this State for either or any of such purposes, subject to limitations not now material to mention. In Stephen v. Smith, 29 Vt. 160, it was said that the right and duty of the defendants, in running the railroad mentioned, to establish and enforce reasonable regulations for the government of the line, had been frequently recognized by the courts in this country; and that the safety and security of the traveling public, as well as the interest of the railroad itself, required that such right and duty exist and be enforced. In Waldron v. International Water Co., 95 Vt. 135, 112 A. 219, 13 A. L. R. 340, it was held that the water company had implied power to make and enforce such regulations as were reasonable and not inconsistent with its duty as a public service corporation under its charter or the laws of the State, citing Bourke v. Olcott Water Co., 84 Vt. 121, 78 A. 715, 33 L. R. A. (N. S.) 1015, Ann. Cas. 1912D, 108.

The principle, on which the decisions in the foregoing cases were based, is equally applicable for similar reasons in the case at bar; and we hold that the petitionee, in the service of generating and distributing electrical...