Inhabitants of Town of Milo v. Milo Water Co.

Decision Date08 December 1932
Citation163 A. 163
PartiesINHABITANTS OF TOWN OF MILO v. MILO WATER CO.
CourtMaine Supreme Court

Report from Superior Court, Piscataquis County.

Action by the Inhabitants of the Town of Milo against the Milo Water Company. On report.

Judgment for plaintiff.

See, also, 129 Me. 463, 152 A. 616.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and THAXTER, JJ.

Hiram Gerrish, of Brownville, C. W. & H. M. Hayes, of Dover-Foxcroft, and Ryder & Simpson, of Bangor, for plaintiff.

McLean, Fogg & Southard, of Augusta, and John S. Williams, of Guilford, for defendant.

BARNES, J.

On report this action of debt for taxes for the year 1928 comes to this court for final judgment, on so much of the evidence as is legally admissible.

No question of the validity of assessment is in issue.

The plea is the general issue, with brief statement.

On May 1, 1909, defendant entered into a contract with the town of Milo to supply the town with pure water for domestic uses, and for protection against fire for the term of twenty years.

By item 7 of its contract with the town the defendant company agreed "to furnish water at the mains so laid for the following purposes, to wit; for filling reservoirs, for flushing sewers, for filling street sprinklers, for the reasonable practice of hose companies at such times and in such amount as shall be deemed necessary by the officers of said town, for the use of all school houses on or adjacent to streets in which pipe is laid or that may hereafter be built along the line of pipe or any extension thereof or adjacent thereto, for the town hall whenever such shall be built, for all other buildings or rooms used by the said town for town purposes exclusively, for all churches and cemeteries situated on or adjacent to streets in which mains may be laid. The supply of water at school houses, town buildings or rooms, churches, and cemeteries to be in each case sufficient for all purposes for which water may there be needed. To furnish, maintain, and supply with water one drinking fountain of modern and approved pattern for the use of man and beast, said fountain to be located by said water committee, and shall be so used as not to cause an unnecessary waste of water at the same, and shall not be regularly used as watering places connected with or incident to barns or stables. The said company will further furnish water for such other drinking fountains as the said town may furnish and erect on its said lines, under the same conditions as the one described to be furnished by the company. The said company further agrees to furnish and erect one stand-pipe or hydrant for the purpose of filling watering carts, and to supply the same with a constant and sufficient supply of water for said purpose."

It was further specified, as part of item 15 of the contract: "In consideration of the construction and maintenance of said system of water works in accordance with the foregoing agreements, said town hereby agrees to pay to said company, its successors, and assigns, the sum of fifteen hundred dollars per year during said period of twenty years for the use of said forty hydrants as more particularly set out in this contract and for water for the same; and for water for the purposes specified in Item seven of this contract such further sum each year as shall equal the amount of tax, if any, assessed against said Company by said town of Milo during said year."

On complaint of defendant company dated February 23, 1920, and referred to as F. C. No. 277, asking for an increase of rates, a decree was rendered by the Public Utilities Commission on December 31, 1920, increasing rates in all classes of service, and raising each annual hydrant rental rate from $37.50 to $40.

On September 30, 1927, on another petition brought by the defendant company, referred to as F. C. No. 641, a decree was issued by the Public Utilities Commission granting further increase of rates and increasing the hydrant rentals to $60 per hydrant. The record of the findings and statements accompanying and leading up to the formal language of the decree in F. C. No. 641, supra, is that "the petitioner presents estimates (Petr. ex. 6) showing a requirement of $12,556.00 (exclusive of taxes) for expenses of operation," and then, after stating that "we have a total requirement of $12,500.00 for operating expenses," the record goes on thus: "We shall assume that the Water Company and the town of Milo will continue to be guided by the terms of the present contract, except as modified by this and former decrees of this Commission." At the time this decree was made, the contract was in force except as modified and affected by the decree in F. C. No. 277. The commission was not considering taxes, but realized, and so stated, that, if the time came when the defendant company was called on to pay taxes, "that would be an element to be figured in the establishing of new rates." This is clearly shown by its statement that "the rates herein provided will probably yield a gross revenue somewhat in excess of the requirements and perhaps sufficient to provide the necessary revenue upon additions to the plant. If, however, the future revenue requirements are increased by reason of necessary additions to plant, municipal tax assessment or otherwise, a readjustment of rates may be made, after further petition and hearing, to meet conditions that may then exist."

The evidence shows that no taxes had been assessed by the town against the defendant company from the date of the contract to September 30, 1927, the date of the decree in F. C. No. 641.

In 1928 the town did assess a tax against the defendant company, and, after due demand, this suit, duly ordered, to collect the tax in the name of the inhabitants of the town of Milo was brought.

It is argued by defendant that the suit must fail, because:

First. In the record of levy of taxes the description of property of defendant is insufficient to support suit for the tax.

Second. Action of the town evidenced by a legal contract controls assessors.

Third. Estoppel is effective against the town.

Fourth. Taxes are subject to recoupment, counterclaim, or set-off.

As to the first objection, the description of the property taxed is not made as directed by statute. It is not incumbent upon us in this suit to decide whether the irregularities are such as would vitiate title, if property taxed were sold by the collector, under the law.

The present suit is for a tax assessed, and, in meeting objection to irregularities in such suit, our court has said:

"This is not a proceeding wherein a forfeiture is sought to be enforced, but a suit at law for the recovery of unpaid taxes. Much greater particularity and precision are required in the former than in the latter; and it has been held that the stringent rules which have been applied in testing the validity of arrests and sales of property for unpaid taxes, are not applicable where the remedy sought is by an ordinary suit at law to collect unpaid taxes. Cressey v. Parks, 76 Me. 532; Rockland v. Ulmer, 84 Me. 503, 24 A. 949; Rockland v. Ulmer, 87 Me. 357, 32 A. 972. As was said in Cressey v. Parks, where the distinction is properly made between collecting taxes by suit and proceedings to enforce a forfeiture: 'To prevent forfeitures, strict constructions are not unreasonable. But where forfeitures are not involved, proceedings for the collection of taxes should be construed practically and liberally.*" Charleston v. Lawry, 89 Me. 582, 36 A. 1103.

So we hold that under proper construction and application of statutes applicable the record of assessment is sufficient.

The second objection seems to be that, if a utility and the town which may tax it are operating under a contract, legal upon its face, and if the assessors of the town have not taxed the utility, assessors, while the contract longer obtains, may not lawfully tax the utility.

The rates, tolls, and charges specified in the contract were reviewed in 1927 by the Public Utilities Commission, pronounced unreasonable, insufficient, and unjustly discriminatory, and a new schedule of rates for all services ordered.

Under the new schedule of rates, certain service of the company, included in item 7 of the contract, and by its terms paid for by what amounted to an irregular abatement of taxes annually, were thereafter to be paid by the town as:

Watering trough, each

$30.00

Standpipes, street sprinkling...

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