Mayo v. Dover & Foxcropt Vill. Fire Co.

• Decision Date: 09 September 1902
• Citation: 96 Me. 539,53 A. 62
• Parties: MAYO et al. v. DOVER & FOXCROPT VILLAGE FIRE CO. et al.
• Court: Maine Supreme Court

53 A. 62

96 Me. 539

MAYO et al.

v. DOVER & FOXCROPT VILLAGE FIRE CO. et al.

Supreme Judicial Court of Maine.

Sept. 9, 1902.

(Official.)

Report from supreme judicial court, Piscataquis county.

Bill of Josiah B. Mayo and others against the Dover & Foxcroft Village Fire Company and others, to enjoin the purchase of certain water works, and to restrain the creation of any debt or assessment or any tax by the village corporation on account of the purchase price. Case reported and bill dismissed.

Argued before WISWELL, C. J., and WHITEHOUSE, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

O. D. Baker and J. B. Peaks, for plaintiffs. H. M. Heath, F. E. Guernsey, and C. W. Hayes, for defendants.

WISWELL, C. J. The Dover & Foxcroft Village Fire Company is a public corporation, consisting of portions of the territory of the adjoining towns of Dover and Foxcroft, and the inhabitants thereon, created by an act of the legislature approved March 20, 1803 (chapter 262, Sp. Laws 1863), with certain powers and for certain limited municipal purposes, which are stated as follows in the original act of incorporation: "Said corporation is hereby Invested with power at any legal meeting called for the purpose, to raise money for the purchase, repair and preservation of one or more fire-engines, hose and apparatus for extinguishment of fire, for the procuring of water, and for the organizing and maintaining within the limits of said territory an efficient fire department."

The act of Incorporation contained provisions in relation to the officers of the corporation; the manner in which money raised by the corporation for its authorized purposes should be assessed upon the property within the territory; authorizing the corporation to borrow not exceeding the sum of $2,000 for its purposes; and in relation to a variety of other matters not necessary to be here considered.

On November 27, 1886, a written contract was entered into between this corporation and the Dover & Foxcroft Water Company, wherein the water company agreed to furnish, set, and maintain a certain number of hydrants, and additional hydrants as they might be required, and to furnish through such hydrants a constant and sufficient supply of water for protection against fire, for which the village corporation agreed to pay an annual rental. The contract contained numerous and detailed provisions as to the location, size, and character of the dam, standpipe, pumps, and pipe lines, and in general as to the construction and efficiency of the system of water works to be built by the water company.

The contract also contained this clause: "Item Eighteenth. At any time after ten years, and before fifteen years, from the time payments begin under this contract the said fire company shall have the right and privilege of purchasing of said water company all the buildings, reservoirs, fixtures, apparatus and property of said water company, with all its corporate rights and privileges at such a price as may be agreed on; and in case of disagreement between the parties the price shall be determined by three disinterested appraisers appointed by the chief justice of the supreme judicial court, none of whom shall be residents of Piscataquis county. When thus chosen and assembled such appraisers shall have power to determine finally and conclusively the amount which said fire company shall pay for the rights, property and franchise of said water company. The option of said purchase may be exercised by the said fire company either before or after such appraisal, if after, then within six months therefrom."

This contract was executed, upon the part of the village corporation, by its assessors, who were authorized to do so by a vote of the inhabitants at a meeting duly called for the purpose, and held at Mayo's Hall in the town of Dover on November IS, and, by adjournment, on November 27, 1886. At the first meeting a committee was appointed "to negotiate a contract for a fire service of thirty hydrants, at an annual rental, with some party, and report the same at an adjourned meeting." At the adjourned meeting the committee in their report submitted a draft of this contract with the water company, which was first discussed item by item, spread upon the records of the village corporation; and it was then voted "that the assessors of the Dover and Foxcroft Village Fire Company be hereby instructed and authorized, in the name of the said fire company and in its behalf, to execute the contract this day reported by the committee on water works, and this day spread upon the records, whenever the same shall be executed on its part by the Dover and Foxcroft Water Company."

The Dover & Foxcroft Water Company, the other party to this contract, had shortly before its execution been organized under the general laws of this state relating to the organization of corporations; but in the following winter an act of the legislature (chapter 31, Sp. Laws 1887) was passed giving it certain powers. A portion of section 12 of this act is as follows:

"The existing contract between the said water company and the said Dover and Foxcroft Village Fire Company of date of November twenty-seven, in the year of our Lord one thousand eight hundred and eighty-six, is hereby confirmed and made legal and valid."

And the same legislature passed an act (chapter 260, Sp. Laws 1887), entitled, "An act to amend the charter of the Dover and Foxcroft Village Fire Company," the first three sections of which are as follows:

"Section 1. The proceeding of the incorporation and organization of the Dover and Foxcroft Village Fire Company are hereby confirmed and made valid; and all the proceedings of said corporation in calling, holding and acting in a meeting of said corporation, held in Mayo's Hall in Dover, on the eighteenth day of November, in the year of our Lord one thousand eight hundred and eighty-six, and by adjournment thereof on the twenty-seventh day of November, in the year of our Lord one thousand eight hundred and eighty-six, and all the votes, acts and doings of said corporation at said meetings, are hereby ratified, confirmed and made valid.

"Sec. 2. Said corporation is authorized to raise money for an annual supply of water for fire and other municipal purposes, and for an annual rental of hydrants, in addition to the purposes now authorized, to be levied and assessed in the manner provided by its charter and by this act.

"Sec. 3. The existing contract of date of November twenty-seven, in the year of our Lord one thousand eight hundred and eighty-six, between said corporation and the Dover and Foxcroft Water Company, is hereby ratified, confirmed and made valid; and said fire company is authorized to raise such sums of money from time to time, as may be necessary for the purposes thereof."

On July 3, 1891, the Maine Water Company, by a deed of that date from the Dover & Foxcroft Water Company, acquired "all the rights, privileges, immunities, franchises, and property" of the Dover & Foxcroft Water Company, subject to all the then existing contracts of this latter company, special reference being made to the contract under consideration in these words: "The said Maine Water Company hereby covenants and agrees that it will faithfully perform each and all of the obligations of all the contracts now existing between the Dover and Foxcroft Water Company and the Dover and Foxcroft Village Fire Company in each and every particular, and shall be subject to all the liabilities of said contracts, as fully and completely as if said Maine Water Com pany was a party to said contract"

On September 7, 1901, the Dover & Foxcroft Village Fire Company appointed a committee to proceed under item eighteenth, hereinbefore quoted, of this contract, with full power and authority to secure by agreement if possible, if not by appraisal, the valuation and amount of money necessary to purchase the water system, rights, property, privileges, and franchise located in the towns of Dover and Foxcroft, now owned by the Maine Water Company, in accordance with the provisions of the contract above referred to. And, prior to the commencement of this bill, this committee, in behalf of the village corporation, had petitioned the chief justice of this court, setting out the contract in question, the fact of the appointment of the committee for the purpose above named, and their authority, alleging that there was a disagreement between the village corporation and the Maine Water Company as to the price to be paid for the property, rights, and privileges of the water company, and praying for the appointment of three disinterested appraisers to determine such price in accordance with the provisions of the contract.

Upon this petition notice was ordered returnable on February 11, 1902. But, before that time, this bill in equity by certain taxpayers within the limits of the territory of the village fire company, against that corporation and its committee, was filed, praying for a preliminary and permanent injunction restraining the village corporation and its committee from taking further action in the matter, and an order was made upon the prayer contained in the bill for a preliminary injunction, returnable at the same time and place as was the order upon the petition for the appointment of appraisers. No decree was made upon the prayer for a preliminary injunction, but the hearing upon the petition for the appointment of appraisers was continued until the cause could be finally heard and a final decree made. The case has been reported to the law court for that purpose.

It is urged, in behalf of the complainants, that their prayer for a perpetual injunction should be granted because they contend that the contract between the village fire company and the predecessor of the Maine Water Company was ultra vires; that the acts of the legislature above referred to, and relied upon by the respondent as ratifying this contract, were insufficient...