New Haven Water Co. v. City Of New Haven
| Decision Date | 21 December 1944 |
| Citation | 131 Conn. 456,40 A.2d 763 |
| Court | Connecticut Supreme Court |
| Parties | NEW HAVEN WATER CO. v. CITY OF NEW HAVEN et al. |
OPINION TEXT STARTS HERE
Appeal from Superior Court, New Haven County; Alcorn, Judge.
Action by the New Haven Water Company against the City of New Haven and others for a declaratory judgment determining which of the defendants is liable for water supplied, and for damages from that defendant, wherein the Fairmount Association filed cross-complaint. From a judgment for plaintiff against the City of New Haven and in favor of the Fairmount Association, the plaintiff and the City of New Haven appeal.
No error on appeal of defendant City of New Haven, and error on plaintiff's appeal only in the amount of interest allowed in judgment.
A. Frederick Mignone and Vincent P. Dooley, both of New Haven, for appellant-appellee (defendant city of New Haven).
Samuel A. Persky, Henry H. Townshend, and Serafino Ginnetti, all of New Haven, for appellee (defendant Fairmount Ass'n).
Morris Tyler and Crenna Sellers, both of New Haven, for appellant-appellee (plaintiff).
Before MALTBIE, C. J., and BROWN, JENNINGS ELLS, and DICKENSON, JJ.
The plaintiff furnished water for fire protection in the thirty-second ward of the city of New Haven for which it has not been paid. The Fairmount Association is a municipal corporation with limited powers and obligations functioning within the territorial limits of the present thirty-second ward, which is the former fifteenth ward of the city. The plaintiff brought this action for a declaratory judgment determining whether the city or the association is indebted to it for the water, and for damages. Judgment was entered declaring that the city is liable for the water furnished and to be furnished for fire protection within the territorial limits of the Fairmount Association, and that the Fairmount Association is not liable therefor. It was further adjudged that the plaintiff recover of the city the amount of the water bill, with interest from the date of the judgment. The defendant city and the plaintiff have appealed, the plaintiff's appeal being limited to the claim that the court erred because it did not include interest from the dates of the bills found to be due.
The claim against the city is based on a contract which it made with the plaintiff in 1902. The city contends that so much of the contract as provided for furnishing water to the ward in question, which was not within the full jurisdiction of the city, was ultra vires. The claim against the Fairmount Association is based on the allegations that it is authorized to provide for protection from fire within its territory and to contract and pay for fire protection, and that it used the water for this purpose. The Fairmount Association denied these allegations and by cross-complaint sought an adjudication that the city and not the association is liable for the water charges.
In February, 1902, the plaintiff and the city entered into a written contract which, in substance, provided that the plaintiff was to furnish water to the city for municipal purposes ‘wheresoever the mains of said Company now are or may hereafter be extended within the present limits of the City and within any future limits thereof, including water for school and fire protection purposes, whenever ordered by the City to do so, in the Thirteenth, Fourteenth and Fifteenth wards, for all time after the twentieth day of February, A. D. 1902, or until the termination of this contract in accordance with the provisions thereof, without cost or charge,’ in consideration that the city save the water company harmless from certain taxes, or in lieu thereof pay for the water on a prescribed basis. It is apparent that the parties to the contract had some doubt as to the power of one or both to enter into the agreement, for it was provided therein that ‘said City and said Company will unite in an application to the General Assembly, at its next session, for the passage of an act making the terms of this contract obligatory upon both parties as though specifically authorized in their respective charters.’
In April, 1902, in accordance with the terms of the contract, the city ‘ordered and required’ the water company to furnish a full and adequate supply of water for fire protection and school purposes in the thirteenth, fourteenth and fifteenth wards ‘in accordance with the provisions of paragraph First of the contract recently entered into between the City of New Haven and the New Haven Water Company.’ As provided in the agreement, the plaintiff and the city joined in an application to the 1903 General Assembly as a result of which an act was passed whereby the contract of February, 1902, was made in effect an amendment to the respective charters of the two corporations and became by legislative enactment obligatory on each. 14 Sp.Laws 1903, p. 276; New Haven Water Co. v. New Haven, 106 Conn. 562, 572, 139 A. 99. In May, 1932, the public utilities commission ordered the city to pay a rate higher than that specified in the contract for the water purchased from the company for municipal purposes including fire protection. The city continued to purchase water under the 1902 contract, paying therefor in full at the new rate until January 1, 1940. From that period up to and including June 30, 1943, the plaintiff supplied and stood by to supply water to the territory within the boundaries of the Fairmount Association. It is the bill for water thus furnished that the city now refuses to pay. It admits that the water was used for fire protection in its thirty-second ward; it does not dispute the rate on which the bill is computed or the amount of the bill.
The city's basic claim is that the contract is void in part because the city had no power to provide for furnishing water to the wards in question. In order to determine whether this was so at the time the agreement was executed an exhaustive statement would have to be made concerning the statutory powers and limitations binding it in 1902 when it entered into the contract. If the legislative act of 1903, passed for the purpose of dispelling this uncertainty, did in fact effectuate its purpose and make the contract valid and binding upon both parties, the question whether it was ultra vires when made becomes academic.
The city cites numerous cases which hold that it could not ratify and make valid an act done without the scope of its corporate authority. The ratification and validation were acts of the legislature, not the city. In New Haven Water Co. v. New Haven, supra, 106 Conn. 572, 139 A. 103, in construing the effect of the act of 1903, we said: The long...
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