Trybulski v. Bellows Falls Hydro-Elec. Corp.

• Decision Date: 13 May 1941
• Docket Number: No. 1132.,1132.
• Citation: 20 A.2d 117,112 Vt. 1
• Parties: TRYBULSKI et al. v. BELLOWS FALLS HYDRO-ELECTRIC CORPORATION.
• Court: Vermont Supreme Court

20 A.2d 117

112 Vt. 1

TRYBULSKI et al.

v. BELLOWS FALLS HYDRO-ELECTRIC CORPORATION.

No. 1132.

Supreme Court of Vermont. Windham.

May 13, 1941.

[Copyrighted material omitted.]

Appeal from order of Public Service Commission; E. B. Cornwall, Milo C. Reynolds, Wm. H. Darrow, Public Service Commission of Vermont.

Proceeding by John J. Trybulski and others against the Bellows Falls Hydro-Electric Corporation for damages. From an order of the Public Service Commission dismissing the petition for lack of jurisdiction, the petitioners appeal.

Affirmed.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Barber & Barber, of Brattleboro, for plaintiff.

Fenton, Wing & Morse, of Rutland, for defendant.

MOULTON, Chief Justice.

This is an appeal from an order of the Public Service Commission dismissing for lack of jurisdiction a petition brought to assess damages for injuries to the properties of the petitioners claimed to have been caused by the maintenance and operation of the petitionee's dam across the Connecticut River between Bellows Falls, Vermont, and North Walpole, New Hampshire. The petitionee is engaged in the manufacture and sale of electric current. The premises of the petitioners lie in this State, abutting on the river, at some distance downstream from the dam. It is alleged that, in a manner and for reasons not necessary to recount in detail, the petitionee has operated its dam so as to cause certain fluctuations in the flow of water which have resulted in the erosion of the lands owned by the petitioners, and that in March, 1936, after the formation of an ice jam above the dam, and a period of warm weather, rain and fog, the flashboards and gates of the dam were removed so that a large volume of water and ice came down the river, overflowing and washing away the petitioner's lands, depositing thereon a great amount of sand and debris, and damaging their farming tools and machinery.

The petitionee was incorporated by an Act of the Legislature passed October 25, 1792, under the name of "The Company for Rendering the Connecticut river navigable by Bellows Falls," and was granted "the exclusive privilege of erecting and continuing locks on or by Bellows Falls, on Connecticut river, within the State of Vermont," and the charter provided "That if it should be found necessary to fully effect the intention of this act, to erect a dam on Connecticut River, and thereby flow, or otherways injure the property of any of the good citizens of this state, such person or persons so injured shall, upon application to the county court for the county of Windham, be entitled to receive from the company aforesaid, such compensation as the county court shall adjudge just and equitable, for the injury which such person or persons has sustained, or probably may in future sustain, by flowing the said land or in any other way whatsoever, and a record being made thereof by the clerk of said court shall be a complete bar to any future application for any compensation for any injury done to the same property, whether real or personal; and any action for damage sustained by the dam aforesaid, shall be commenced in the mode prescribed by this act, and in no other, unless the company shall have failed to pay the sum or sums assessed by the court aforesaid, any law, usage or custom to the contrary notwithstanding." Laws of Vermont, 1797, Appendix, pp. 81-84. The charter was amended by No. 135, Acts of 1859, by changing the corporate name to the Bellows Falls Canal Company, and providing that "All the rights and privileges heretofore granted such company are hereby extended to them for the purpose of manufacturing, selling or renting of water power, and the transacting of such other business as may be incident thereto." A further amendment was effected by No. 365, Acts of 1912, which after reciting (§ 1) that the company had ceased to furnish navigation service, provided (§ 9) that "Said Bellows Falls Canal Company shall at all times be subject to the general laws of this state from time to time in effect and applicable to water power corporations, and shall be subject to all duties, limitations and restrictions imposed thereby; and if at any time said Bellows Falls Canal Company shall engage in the business of manufacturing, distributing and selling to the public electricity for light, heat or power purposes, it shall be under and subject to all general laws of this state then and from time to time in effect applicable thereto, and shall be subject to the duties, limitations and restrictions thereby imposed, and shall be subject to the supervision and authority of the public service commission in the manner and to the extent provided in Act No. 116 of the acts of 1908 and any acts amendatory thereof or supplemental thereto." At some time subsequent to the passage of this act, the exact date not appearing in the record, the name of the petitionee was changed to the Bellows Falls Hydro-Electric Corporation.

The Public Service Commission has "the powers of a court of record, both at law and in equity, in the determination and adjudication of all matters over which it is given jurisdiction. It may render judgments, make orders and decrees, and enforce the same by any suitable process issuable by courts of law and equity in this state," (P.L. 6060) subject to the right to an appeal to the Supreme Court, P.L. 6063.

By P.L. 6085 the Commission is given "general supervision of all companies engaged in the manufacture, distribution, or sale of gas or electricity directly to the public or to be ultimately used by the public for lighting, heating or power * * * and of all companies engaged in the construction and maintenance of storage reservoirs * * * for the purpose of power to be developed at such reservoirs * * * so far as may be necessary to enable it to perform the duties and exercise the powers conferred upon it by this chapter." And by P.L. 6091, "The commission shall have jurisdiction, on the notice, to hear, determine, render judgment and make orders and decrees in all matters provided for in the charter or articles of any corporation owning or operating any plant, line or property subject to supervision under this chapter * * *." P.L. 6085 and 6091 were originally enacted as Sec. 3 and 9, respectively, of No. 116, Acts of 1908, to which reference is made in the amendment to the petitionees' charter effected by No. 365, Acts of 1912.

The jurisdiction of the Public Service Commission over this proceeding is claimed by the petitioners to be conferred by the foregoing statutes: (1) The original charter of 1792, providing for the assessment of compensation for injuries caused by flowage or otherwise by the Windham County Court; (2) The amendment of 1912, making the petitionee subject to the supervision and authority of the Public Service Commission; and (3) P.L. 6091, conferring jurisdiction upon the Commission to hear, determine and render judgment and make orders and decrees in all matters provided for in the charters of any corporation owning and operating any property subject to its supervision. Thus, it is argued, the authority of the Windham County Court to adjudge just and equitable compensation has been transferred to the Commission, and that the language of the charter is sufficiently comprehensive to include injuries to property below as well as above the dam.

On the other hand, it is the position of the petitionee that the assessment of damages for previously committed acts is a judicial function, and, under the Constitutional provision for the separation of powers, cannot be exercised by the Commission.

The Constitution of this State (Chap. II, Sec. 5) provides that "The Legislative, Executive, and Judiciary departments, shall be separate and distinct, so that neither exercise the powers properly belonging to the others." This provision, which is a characteristic feature of American constitutional government (See Pillsbury, "Administrative Tribunals," 36 Harv. Law Rev. 405) does not mean an absolute separation of functions. Sabre v. Rutland R. R. Co., 86 Vt. 347, 362, 85 A. 693, Ann. Cas.1915C, 1269. Of necessity there must be a certain amount of overlapping or blending of the powers exercised by the different departments. To borrow the words of a distinguished authority: "The constitution does not require a rigid analytical classification in which every conceivable activity of government is assigned once for all exclusively to one of the three departments. There are many powers which are of doubtful classification both analytically and historically", Roscoe Pound, "The Place of a Judiciary in a Democratic Polity." 27 Am.Bar Ass'n Journal, 133, 136. While this was written with regard to the Federal Constitution, it is equally applicable to our own. But although one department of government may be authorized to exercise certain powers which may in some manner pertain to another, these powers must be such as are incidental to the discharge of the functions of the department exercising them. Re Opinion of Justices, 87 N.H. 492, 179 A. 344, 357, 110 A.L.R. 819, 822, 823. Beyond this the powers of one department may not constitutionally be conferred upon another. Denver v. Lynch, 92 Colo. 102, 18 P.2d 907, 86 A.L.R. 907, 910; State ex rel. Williams v. Whitman, 116 Fla. 196, 150 So. 136, 156 So. 705, 95 A.L.R. 1416, 1421; State ex rel. Standard Oil Co. v. Blaisdell, 22 N.D. 86, 132 N.W. 769, 773, Ann.Cas. 1913E, 1089.

The Public Service Commission is an...