Lucia v. Vill. of Montpelier

• Decision Date: 26 September 1888
• Citation: 15 A. 321,60 Vt. 537
• Parties: LUCIA et al. v. VILLAGE OF MONTPELIER et al.
• Court: Vermont Supreme Court

15 A. 321

60 Vt. 537

LUCIA et al.

v. VILLAGE OF MONTPELIER et al.¹

Supreme Court of Vermont. Washington.

September 26, 1888.

Appeal from chancery court, Washington county; before Justice ROWELL.

Bill in chancery, heard, March term, 1888, on bill, answer, and testimony. Decree pro forma enjoining the defendants from laying the water-main mentioned in the bill, and from borrowing any money on the credit of the village for the purpose of paying the expenses of the same. Appeal by defendants. The bill set forth in substance that the village of Montpelier was incorporated in 1855 by the legislature of the state of Vermont; that the charter was amended in 1872, by act No. 257 of that year, both the charter and its amendment being made part of the bill; that section 1 of the amendatory act was as follows: "Section 1. The second section of the act of incorporation of the village of Montpelier is hereby so amended as to authorize said corporation to purchase the right to take water from the outlet of Berlin pond, or such other place as said corporation may desire, and convey said water in suitable aqueducts and pipes to said village, and then distribute the same through said village in aqueducts and pipes, for the extinguishment of fires, and sanitary purposes, and for the use and convenience of the inhabitants of said village, and receive and collect such rents for the use of water as shall be agreed upon by the parties;" that the village, in 1884, under the power given it by section 1 of the amendatory act of 1872, purchased the right to take water from the outlet of Berlin pond, and purchased or otherwise procured the right to construct a reservoir and aqueduct to convey the water to said village; that the reservoir was constructed about two miles distant from said village, on the brook flowing from said pond, and an iron pipe laid to conduct the water from the reservoir to the village, and different sizes of iron pipe were laid through the village for conducting the water from said reservoir for the extinguishment of fires, sanitary purposes, and all the ordinary uses for which water is used; that said aqueduct and reservoir were well and permanently built, and of ample size, so that sufficient water could flow through them for the extinguishment of fires, sanitary and domestic purposes, at all times, and is in every way suitable for the wants of the inhabitants of said village, and large enough for the prospective needs of said village, and will afford sufficient water, for all the purposes contemplated in said charter, when said village shall contain six times its present number of inhabitants. The bill further set forth that at the time of making the plans and of the construction of said aqueduct it was not contemplated by those having the direction of construction and estimates that the water should be used for power; that after its construction, there being a large surplus of water supplied by said aqueduct, not wanted for public use, it was found that by reason of the great height of the reservoir above the village, that such surplus water could be used in running motors, and a large number have been put in of various sizes by the inhabitants of said village, and such power has been rented for a sum much less than such power could be obtained in any other way. It further set forth that there were persons living in the village of Montpelier who desired water for power, at low rates, and that there were others who wished to induce people to engage in business in Montpelier by furnishing them power by laying another aqueduct or main from said reservoir to the village of Montpelier, and that a meeting of the voters of said village was called on the 26th day of September, 1887, at which time certain votes were passed under article 1 in the warning; that it was voted at that meeting to lay another main water-pipe from the reservoir in Berlin to some convenient point in said village, and that it was voted to borrow a sum, not exceeding $30,000, to defray the expenses of laying such aqueduct. The bill further set forth that the sole purpose of putting in said second main was to provide power for individuals or corporations, and that the water so conveyed would not be needed for public use or purposes. The bill prayed for a temporary injunction to restrain the defendants from entering into any contract relating to the aqueduct, or incurring any expense on behalf of the village of Montpelier towards constructing the same, and restraining the treasurer from borrowing any money for the purposes set forth, until the further order of the court, and that, on hearing, said injunction he made perpetual. The answer admitted the incorporation and organization of the defendant village, and the amendatory acts to its charter, as set forth in the bill. It also admitted that in 1884, and since, said village purchased the right to take water from Berlin pond and the entire water privilege at the outlet of said pond; purchased the right to construct a reservoir, and lay an aqueduct to carry the water to said village; constructed an ample and substantial reservoir, and laid iron pipe to convey water from said reservoir to said village for distributing the water for use. The answer denied that the water now conveyed from the reservoir was at all times sufficient for the purposes specified in the charter of said village, but admitted that some water had been rented for motor power, but not to interfere with such specified purposes; alleged that the supply of water from said Berlin pond was greatly in excess of the capacity of the main water-pipe already laid; admitted the meeting of September 26th, and the votes in said meeting as alleged in said bill; but denied that the said second main water-pipe was voted for the purpose as stated in the bill; and averred that said vote was passed pursuant to the authority given in and by the charter of said village, and for the purpose of bringing water for the uses specified in said charter; and claimed and insisted that the necessity for more water, and the amount of water to be taken, were matters wholly within the determination of the village, and that said recorded vote was the only admissible evidence as to the decision of said village upon those matters and as to the intent of the voters of said village in passing said vote; admitted that the only power specifically given to said village to provide a water supply was contained in its said charter, but averred that the village had the right to procure the water supply voted at said meeting, independent of said specific power contained in its charter; alleged that the village had been and would be greatly damaged by the delay occasioned by the interlocutory injunction by being thereby prevented from contracting for materials at the most advantageous time, and from laying the pipe at the most favorable season of the year.

S. C. Shurtleff, for orator.

There are cases that hold that the legislature is the sole judge as to whether or not a municipal corporation may engage in any public enterprise as a public work, and that evidence to show that the corporation cannot engage in such authorized undertaking because it is not a public work is not admissible. Such is not the law of Vermont, and the many cases in other states on this point are not cited, as it is claimed that the court will not overrule its own decision, which holds it is for the court to determine, upon the evidence, whether any given enterprise is a public or a private undertaking, so as to authorize a corporation to engage in it by taxing its citizens. Tyler v. Beacher, 44 Vt. 648. Villages and towns have no right to incur debts or levy taxes to aid or encourage private or corporation enterprises for manufacturing or mining. The leading case on this subject is Association v. Topeka, 20 Wall. 655. The cases are there all collected on this subject up to that time. This question has twice been before the supreme court of the United States, and the same principle reaffirmed. Parkersburg v. Brown, 106 U. S. 500, 1 Sup. Ct. Rep. 442; Cole v. La Grange, 113 U. S. 6, 5 Sup. Ct. Rep. 416; Tyler v. Beacher, 44 Vt. 648.

Senter & Kemp and Pitkin & Huse, for defendants.

We think it good law that, as "the supply of a large number of inhabitants with pure water is a public purpose," as said by Judge SHAW, in the case of Lumbard v. Stearns, 4 Cush.60, as quoted by Judge POLAND in Williams v. School-Dist., 33 Vt. 277, the village of Montpelier, by the grant to it in its original charter (section 2) to make such by-laws, rules, and regulations as it shall deem proper, has the right to provide a water supply for its inhabitants, though it could not without authority granted by the legislature exercise the right of eminent domain in procuring such supply. Rome v. Cabot, 28 Ga. 50; Livingston v. Pippin, 31 Ala. 542; Dill. Mun. Corp. (Ed. 1872,) § 371. And in that original act of incorporation there was further given, in section 9, the right...