Long v. Brockton Taunton Gas Co.

• Decision Date: 06 June 1960
• Citation: 167 N.E.2d 615,341 Mass. 143
• Parties: Joseph LONG et al. v. BROCKTON TAUNTON GAS COMPANY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 615

167 N.E.2d 615

341 Mass. 143

Joseph LONG et al. v. BROCKTON TAUNTON GAS COMPANY et al.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued May 2, 1960.

Decided June 6, 1960.

Albert C. Doyle, Brockton, for plaintiffs.

Edward H. Stevens, Brockton (Eben G. Townes, Brockton, with him), for defendants.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE, and CUTTER, JJ.

WHITTEMORE, Justice.

The plaintiffs, minority stockholders of the defendant corporation (the defendant), sought to enjoin the sale and rental at retail of heaters, stoves and other appliances which use gas as a fuel as beyond the scope of the charter powers. These were, in substance, the manufacture and sale of gas. The judge in the Superior Court found that 'The sale and rental of appliances has proved very profitable to the defendant company. While such sales and rentals are profitable, the defendant company is principally interested in increasing the sale of gas,' and he ruled that the complained of transactions 'are fairly incidental and auxiliary to * * * [the] main business,' and entered a decree dismissing the bill of complaint from which the plaintiffs appealed. The ruling and decree were right.

This court held in MacRae v. Selectmen of Town of Concord, 296 Mass. 394, 398, 6 N.E.2d 366, 108 A.L.R. 1450 (January 25, 1937), that a municipality in the business of supplying electric energy does not have incidental powers, but recognized that private corporations do have incidental powers. The suggestion of that opinion is that the incidental powers of a private utility include the sale of appliances. Teele v. Rockport Granite Co., 224 Mass. 20, 25, 112 N.E. 497; Capital Gas & Electric Co. v. Boynton, 137 Kan. 717, 22 P.2d 958; Malone v. Lancaster Gas Light & Fuel Co., 182 Pa. 309, 37 A. 932; Commonwealth ex rel. v. Philadelphia Elec. Co., 300 Pa. 577, 151 A. 344; State v. San Antonio Pub. Serv. Co., Tex.Com.App., 69 S.W.2d 38. See Matter of City Ice & Fuel Co., 173 Misc. 534, 18 N.Y.S.2d 588, appeal dismissed 260 App.Div. 537, 23 N.Y.S.2d 376, where the applicable statute expressly allowed such sales. See also G.L. c. 164, § 34, as amended by St.1937, c. 235, § 1 (April 29, 1937). The statement in Opinion of the Justices, 300 Mass. 591, 593, 14 N.E.2d 392, 393, 115 A.L.R. 1158 (in the course of giving the opinion that it would be unconstitutional to require by statute that every electric company furnish its consumers light bulbs without charge), that the sale of appliances is a 'business separate and distinct,' citing the MacRae case, does not point to a different conclusion from that which we have stated in respect of the issue of this case.

The defendants' answer was filed January 20, 1958. When the case came on for trial on June 16, 1959, the plaintiffs moved to strike four paragraphs of the answer for failure to comply with Rule 29 of the Superior Court (1954) which requires full, direct and specific answers and the...