Smith v. Town of Westerly

• Decision Date: 26 February 1896
• Parties: SMITH et al. v. TOWN OF WESTERLY et al. ARNOLD et ux. v. PRICE et al.
• Court: Rhode Island Supreme Court

35 A. 526

19 R.I. 437

SMITH et al.

v. TOWN OF WESTERLY et al.

ARNOLD et ux.

v. PRICE et al.

Supreme Court of Rhode Island.

Feb. 26, 1896.

Separate actions by Orlando R. Smith and others against the town of Westerly and others, and by Louis W. Arnold and wife against Walter Price and others. Heard on demurrers to bills. Sustained.

Walter H. Barney, A. B. Crafts, and Francis Colwell, for town of Westerly.

Walter B. Vincent, for Seaman's Friend Soc. Jos. C. Ely, Walter B. Vincent, and Jas. M. Ripley, for Westerly Waterworks.

TILLINGHAST, J. These cases have been tried together, and we will consider them in the same way. The Smith case is brought by certain taxpayers of the town of Westerly, in behalf of themselves and all others similarly situated, against the town' of Westerly, the members of the town council, members of the committee on waterworks, and the town treasurer, and seeks to enjoin them from proceeding further with the erection of waterworks, or the purchase of land therefor, and from expending any money or incurring any obligations whatever in respect thereof, and for other relief. The Arnold case is brought by taxpayers and owners of land abutting on one of the public streets of Westerly, in behalf of themselves and others similarly situated, against the members of the town council, and seeks to enjoin the respondents and their successors in office, together with their agents and servants, from constructing waterworks or opening streets of the town, and in particular the street on which the complainants' lands abut, for the purpose of laying water pipes therein, without the consent of the Westerly Waterworks, prior to the expiration of the term of years under which it is claimed said corporation has exclusive rights in the streets of said town. The complainants in the Smith case substantially set up in their bill: (1) That at a town meeting holden In Westerly, on the 11th day of April, 1895, it was voted to build waterworks for said town; (2) that the town council of Westerly, in pursuance of said vote, has authorized its committee on waterworks to expend the sum of $1,749 in purchasing certain lands to be used in the construction of waterworks; (3) that the action of the town and town council in the premises was without legislative authority; (4) that, notwithstanding such want of authority, the said town council is proceeding to purchase lands without the state, and threatens to spend large sums of money in building waterworks, by reason of which a burden will be placed upon the complainants and other taxpayers; (5) that the Westerly Waterworks, a private corporation, is, and for a long time has been, furnishing to the citizens of Westerly an abundant supply of pure water at a reasonable cost, and from which the necessary supply for public use can at all times be procured; (6) that the building of new waterworks is unnecessary, and would impose an unjust burden upon the complainants and other taxpayers; (7) that the Westerly Waterworks has the exclusive right, under a contract with said town, to use the public highways for the purpose of laying water pipes, and continuing the same therein, during a specified period, not yet expired, with the terms of which contract said Westerly Waterworks has complied; (8) that, whenever said town shall proceed to construct new waterworks, the said Westerly Waterworks will have the right to enjoin it from so doing; (9) that the complainants believe that said Westerly Waterworks intends so to enjoin the town; (10) that, in case said town should be so enjoined, all sums of money expended by it as aforesaid would be wholly lost; (11) that the Westerly Waterworks obtains its supply from a certain brook in North Stonington, Conn., through contracts made with and privileges obtained from parties having the right to and controlling the stream; (12) that the land which the town is proceeding to purchase is only available in obtaining a supply from the same brook or stream from which the Westerly Waterworks obtains its supply; (13) that no contract or arrangement has been made by said town with the parties controlling said stream to take water therefrom; (14) that the complainants are informed and believe that no such contract or arrangement can be made, and that any expenditure of money for land in such locality would be wholly lost; and (15) that the notice to the taxpayers calling the town meeting of April 11, 1895, did not state that any proposition to expend money was to be voted upon at said meeting, but that, notwithstanding this fact, the expenditure of $150,000 was authorized. The complainants in the Arnold bill set up substantially the same facts, together with the charter of the Westerly Waterworks, and seek the same general relief. To the Smith bill the respondents the town of Westerly and William Hoxsey have demurred, and the other respondents have answered; and to the Arnold bill the respondents have demurred. Several grounds of demurrer are alleged, but principally to the effect that it does not appear from said bills, or either of them, that the Westerly Waterworks has the exclusive right to use the public highways of said town for the purpose of laying and maintaining water pipes, etc.; that, so far as appears from the allegations set up, the town of Westerly has the right to erect waterworks and purchase land therefor; and, also, that it appears by said allegations that the vote of the town passed April 11, 1895, was authorized and legal.

The principal questions raised by the pleadings are: (1) Does the contract entered into between the town council of Westerly and the Westerly Waterworks Company confer upon the Westerly Waterworks the exclusive right to use the public highways and grounds of said town for the laying and maintaining of water pipes for the purposes aforesaid? (2) Has the town of Westerly the right to construct waterworks of its own? And (3) if it has such right, does the vote of the town passed April 11, 1895, authorize the construction of such waterworks?

Before proceeding to answer the first of these questions, it is proper to state that it appearing to the court that the questions involved could not be determined without passing on the rights of the Westerly Waterworks, and it also appearing that said Westerly Waterworks was interested in said questions, but was not a party to said bills or either of them, said corporation was, by order of the court, notified to intervene in said suits if it desired to be heard. Said corporation, however, has not seen fit to become a party to either of said bills, and has informed us through its counsel that it does not desire to do so.

As to said first question, then: Tbe contract which was made with James M. Pendleton and others, who styled themselves the Westerly Waterworks Company, and who subsequently obtained a charter, and organized thereunder as the Westerly Waterworks, we will treat, for the purposes of this decision, as having been made with said corporation. The only authority to make said contract on the part of the town council is conferred by Pub. Laws R. I. 1884, c. 425, § 1, which provides as follows: "The town council of any town, or the city council of any city, may grant to any person or corporation the right to lay water pipes in any of the public highways of such town or city for the supplying the inhabitants of such town or city with water, and may consent to the erection, construction and the right to maintain a reservoir or reservoirs within said town or city, for such time and upon such terms and conditions as they may deem proper Including; therein the power and authority to exempt such pipes and reservoirs, and the land and works connected therewith, from taxation." It will be seen at once that, in attempting to grant to said company the exclusive right to lay water pipes in the public highways of the said town, the town council exceeded the authority conferred by said statute, and hence that the town is not bound by said contract; for, however it may be as respects the power of the legislature to make such a grant exclusive, it is clear that no such power can be exercised by a town council unless it is conferred by express words or by necessary implication. In other words, when a franchise like the one here set up in favor of a corporation is drawn in question, and is claimed to have been obtained by virtue of a contract of this sort, the power of the town council to enter into such a contract must be free from doubt; or, as said by the court in State v. Cincinnati Gaslight & Coke Co., 18 Ohio St. 293, "it must be found on the statute book in express terms, or arise from the terms of the statute by Implication so direct and necessary as to render it equally clear." See 2 Dill. Mun. Corp. (4th Ed.) § 695, and cases cited; Citizens' Gas & Min. Co. v. Town of Elwood, 114 Ind. 332, 16 N. E. 624; Syracuse Water Co. v. City of Syracuse (N. Y.) 22 N. E. 381; Norwich Gaslight Co. v. Norwich City Gas Co., 25 Conn. 19, 31; Saginaw Gaslight Co. v. City of Saginaw, 28 Fed. 529, 534, 538; Grand Rapids Electric Light & Power Co. v. Grand Rapids Edison Electric Light & Fuel Gas Co., 33 Fed. 659 et seq.; Birmingham & Pratt Mines St. Ry. Co. v. Birmingham St. Ry. Co., 79 Ala. 465, 473; Paine v. Spratley, 5 Kan. 525; Sedg. St. & Const. Law (2d Ed.) 291-296, and cases cited; Farnsworth v. Town Council of Pawtucket, 13 R. I. 82; Mathewson v. Hawkins, Index QQ, 18, 19, 31 Atl. 430. Any ambiguity or doubt arising cut of the terms used by the legislature must be resolved in favor of the public. Suth. St. Const. § 380, and cases cited. The statute above quoted simply authorized the respondent town council to grant the right to lay water pipes in the public highways of said town for the purposes and under the limitations and exemptions specified, but did not authorize them to go beyond its terms, and grant the exclusive right so to do. This would be to enlarge and very materially...