Lawrence v. Richards

• Decision Date: 12 September 1913
• Citation: 88 A. 92,111 Me. 95
• Parties: LAWRENCE v. RICHARDS et al.
• Court: Maine Supreme Court

88 A. 92

111 Me. 95

LAWRENCE

v. RICHARDS et al.

Supreme Judicial Court of Maine.

Sept. 12, 1913.

Exceptions from Supreme Judicial Court,

Kennebec County.

Petition by Harry B. Lawrence for a writ of mandamus against Henry Richards and others, to compel the defendants, as the trustees of the Gardiner Water District, to extend the water mains of the district to the petitioner's residence. On plaintiff's exceptions to a denial of the writ. Exceptions overruled.

Argued before SAVAGE, C. J., and CORNISH, KING, BIRD, HANSON, and PHILBROOK, JJ.

Henry H. Sawyer, of Portland, for petitioner.

George W. Heselton and Will C. Atkins, both of Gardiner, for respondents.

SAVAGE, C. J. This is a mandamus proceeding brought against the defendants as trustees of the Gardiner Water District, wherein it is sought to compel the defendants to extend the water mains of the district to the petitioner's residence in South Gardiner, and supply him with water. The cause was heard before a single justice, who denied the peremptory writ, and it comes before us on exceptions to that ruling.

The defendants, in the first place, interpose the objection that exceptions do not lie, when a peremptory writ of mandamus is denied. And they rely upon the language found in Rev. St. c. 104, §§ 17, 18. Section 17 reads as follows: "A petition for a writ of mandamus may be presented to a justice of the Supreme Judicial Court in any county in term time or vacation, who may, upon notice to all parties, hear and determine the same, or may reserve questions of law arising thereon, upon exceptions or otherwise, for the determination of the full court, which may hear and determine the same as hereinafter provided; but in all cases where exceptions are alleged to any rulings, findings or decrees made upon such petition, the case shall be proceeded with as if no exceptions had been taken, until a decision shall be had and the peremptory writ shall have been ordered so that the overruling of such exceptions would finally dispose of the case. * * *" In section 18 it is provided that: "After judgment and decree that the peremptory writ be granted, the justice of said court before whom the proceedings are pending, shall forthwith certify to the Chief Justice for decision, all exceptions which may be filed and allowed to any rulings, "findings or decrees made at any stage of the proceedings." Then follow provisions for the time within which the "excepting party" and the "adverse party" shall file their arguments with the court.

It is true that the language is that the case shall proceed as if no exceptions had been taken until the peremptory writ is ordered, and that there is no literal provision for certifying exceptions to the Chief Justice until after the peremptory writ is granted. But in no other part of either section is there any restriction upon the right of exceptions, or any discrimination between the parties. And the question is, Was it the legislative intent that a petitioner is bound by the decision of the single justice, in case it is against him, but that the respondents may take exceptions to the decision, in case it is against them? Such a discrimination does not seem consonant with the principles of justice and fair play. And we think the statute should not be so construed as to permit such discrimination, unless the statute read as a whole clearly requires it.

It will be noticed that if the interpretation sought to be put upon the statute is the correct one, a petitioner will never have occasion to reserve exceptions in any case, for if he prevails he will not need them, and if he is defeated he cannot use them. But the language of the statute, aside from the two phrases already quoted, is general. It places no restrictions upon the power of the single justice to "reserve questions of law upon exceptions," whether he rules for or against the petitioner. Again, if the proposed construction be correct, only a respondent could be an "excepting party," and only a petitioner could be an "adverse party." Yet the statute uses these expressions as general terms, and gives no hint, in this connection, that either party may not be an "excepting party." The very manner in which these terms are used seems to indicate that the legislative thought was that either party might except, in which case the other party would be the "adverse party." We think the legislative intent becomes quite clear when we consider the legislative reason for requiring that when exceptions are reserved the case shall nevertheless proceed, as if exceptions had not been taken, to a final decision. The reason expressed is, "so that the overruling of such exceptions would finally dispose of the case." Mandamus is a direct and forceful process, and in many instances public or private necessity may require a speedy determination of the issues involved. This is recognized in the other provisions of the statute requiring the exceptions to be "forthwith" certified to the Chief Justice, and limiting the times for argument to short periods. And we think the evident purpose of the clause under discussion was, not to deprive a petitioner of the right of exceptions which the preceding general clause seems to have given him, but to prevent a respondent from delaying the proceeding by interposing interlocutory objections, and carrying exceptions to adverse rulings thereon to the law court in advance of a hearing and decision on the merits. Accordingly we are of opinion that the petitioner's exceptions are properly before us for consideration.

The Gardiner Water District is a quasi municipal corporation, created by chapter 82 of the Private and Special Laws of 1903. It is about 6 miles long northerly and southerly, and about 1 5/8 wide on the average. Territorially it includes only a part of the city of Gardiner, but it does include the village of South Gardiner, in which the petitioner's house is situated. The primary object of the charter was to enable the district to acquire the ownership of the existing water system of the Maine Water Company in Gardiner, Pittston, Randolph, and Farmingdale, by condemnation or otherwise. For, although power was granted to it to take and hold water of the Cobbossecontee river, and to take land for dams, reservoirs, and so forth, yet section 13 of the act provided that this grant of power should be inoperative unless the district should first acquire the plant and franchises of the Maine Water Company. At the time the charter was granted, and at the time the district acquired the plant of the Maine Water Company, its system was extended only through the more congested and thickly settled portions of the city of Gardiner, and not into the outlying parts of the district. The area of service lay mostly within a circle one mile in diameter. It did not then extend to South Gardiner, which is about five miles from the city proper. Nor has it since been extended in the direction of South Gardiner more than a few hundred feet.

The charter of the district provides, in section 5, that: "All the affairs of said water district shall be managed by a board of trustees composed of three members to be chosen by the municipal officers of the city of Gardiner." In the original act, section 9, the district, by its trustees, was authorized to issue bonds to an amount sufficient to procure funds to pay the expenses incurred in the acquisition of the property of the Maine Water Company, and the purchase thereof, and for further extensions, additions, and improvements of said plant. And it was provided, by reference to R. S. 1883, c. 46, § 55, that such bonds should be a legal obligation of the district for the payment of which the property of the inhabitants of the district might be taken on execution. The trustees were empowered to establish rates (section 10) which should at least be sufficient to provide revenue for: (1) The payment of current expenses, and for such extensions and renewals as might become necessary; (2) the payment of interest on the indebtedness of the district; and (3) to provide annually an amount equal to 4 per cent. of the indebtedness, to be added to the sinking fund. Any surplus remaining at the end of a year might be paid to the municipalities supplied, in proportion to their respective contributions to the gross earnings.

By chapter 89 of the Private and Special Laws of 1905, the power of the district to issue bonds was limited, so that "when the cost of renewals, extensions, additions or improvements proposed during any one fiscal year of said water district shall be estimated by the trustees at more...