Valcour v. Village of Morrisville

• Decision Date: 05 May 1936
• Citation: 184 A. 881,108 Vt. 242
• Parties: AIME VALCOUR v. VILLAGE OF MORRISVILLE
• Court: Vermont Supreme Court

184 A. 881

108 Vt. 242

AIME VALCOUR v. VILLAGE OF MORRISVILLE

Supreme Court of Vermont

May 5, 1936

February Term, 1936.

P L. 6453---Intent of Legislature to Restrict Privileges as to Water Power, Eminent Domain, and Highways to Public Service---Control of State over Streets and Highways---Legislature to Grant Privileges and Fix Terms of Use---Right to Run Transmission Lines in Highways---P. L 6433 as to Authority of Selectmen and Highway Board over Highways Qualified by P. L. 6453 Restricting Use for Electric Lines to Public Services---P. L. 6453 Not Made Applicable by Line Crossing Highway---No Assumption Line in Highway Erected after Enactment of P. L. 6453---Where Line Previously Erected Statute Not Applicable---Due Process Clause Violated If Statute Applied---Furnishing of Electric Energy by Municipal Corporation Held on Record to Be by Private Contract---No Right to Compel Sale of Surplus Electric Energy by Municipal Corporation Selling Surplus by Special Contracts---Converting Private Business into Public Utility as Violation of Due Process---Effect of Findings as to Prior Litigation on Questions Regarding Effect of Former Decision.

1. Legislature intended by P. L. 6453 to impress a dedication to a reasonable public service upon those generating electricity by water power and availing themselves of the power to take property and rights by eminent domain, or of the use of the public highways for their transmission lines, and to restrict the power of eminent domain and such use of the highways to those willing to assume a public service.

2. Subject to constitutional limitations, the State has absolute control of its public streets and highways, including those of its municipal and quasi-municipal corporations, and the right to grant the privilege of occupying the highways and fix terms and conditions is primarily in the Legislature.

3. The right, common to all, to use the highways, is the ordinary use made thereof, and by no means includes the special and extraordinary use of an electric transmission line for a private purpose.

4. The provision of P. L. 6453 that one using a public highway for carrying lines for the transmission of electric energy shall furnish such energy at a reasonable price to any and all persons, etc., desiring to use the same for certain designated purposes, subject to conditions and limitations prescribed by the public service commission, constitutes a qualification of P. L. 6433 providing that the highway board or the selectmen may authorize persons to construct electric lines for private use along the highways of a town.

5. The fact that transmission lines over which a municipal corporation distributes surplus electricity outside its limits cross the highway in one or two places does not bring such corporation within the provisions of P. L. 6453 with respect to such lines, whereby it would be obliged to furnish service to anyone desiring it for certain designated purposes, subject to conditions and limitations imposed by the public service commission.

6. On review of order of public service commission requiring that municipal corporation furnishing electric energy outside its limits furnish such energy outside its limits to petitioner where it did not appear when certain lines maintained in the highway outside the limits were erected in reference to the enactment of No. 166, Acts of 1912, now P. L. 6453, held that it could not be assumed that it was subsequent to the enactment of the statute.

7. One using a public highway for carrying electrical transmission lines erected for private use prior to the enactment of No 166, Acts of 1912, now P. L. 6453, is not bound thereunder to furnish energy to anyone desiring it subject to conditions and limitations prescribed by the public service commission, since to treat the statute as applicable would be unlawfully to compel him to do a form of public service contrary to the due process clause of the Fourteenth Amendment, unless he has already voluntarily dedicated himself to the public service in the territory through which such lines pass.

8. On review of order of public service commission requiring that municipal corporation furnishing electric energy outside its limits from surplus current available furnish such energy to petitioner, where there was no finding as to the amount of electric energy generated by petitionee's plant or as to the relative extent to which it was doing business outside its limits, or that it was in fact devoting its surplus to public use, and where it was assumed that petitionee in the sale of its surplus outside its limits was not acting as a public utility, but that its relations with its customers were purely contractual, held that the status of the petitionee was that of a purveyor of electric energy by special contract, and its transmission lines and equipment used for that purpose were not dedicated to a public use so as to bring it under the jurisdiction of the public service commission by virtue of the provisions of P. L. 6084, 6085, 6091, and 6094, relating to its powers and duties as to "other public service companies."

9. A municipal corporation which does not profess to sell its surplus electric energy outside its limits to the public indiscriminately at regular rates, the fundamental characteristic of a public calling, but which has adopted the policy of entering into special contracts on its own terms, is engaged in private business, and there is no right to compel the sale of its surplus.

10. It is beyond the power of the State, as limited by the due process clause of the Fourteenth Amendment, whether by legislative fiat or by the regulating order of a commission, to convert property used exclusively in private business into a public utility, or to impose upon the owner the obligation of indiscriminate service.

11. Where public service commission found facts as to prior litigation and finding was not challenged, questions whether former decision was res adjudicata as to certain matters and whether res adjudicata is available as a defense though not pleaded, need not be determined by Supreme Court.

APPEAL to Supreme Court, Lamoille County, from order of public service commission that petitionee supply petitioner with electric energy from its unsold surplus on same terms on which such energy is sold to consumers residing in vicinity. Petitionee denied jurisdiction of commission to make the order appealed from on ground that it was engaged in private business in respect to the sales of its surplus. See, also, 104 Vt. 119, 158 A. 83. The opinion states the case.

Order reversed, and cause remanded. Let the result be certified to the public service commission.

Frederick G. Fleetwood and Guy M. Page for the petitionee.

Benjamin N. Hulburd for the petitioner.

Present: SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

OPINION

SHERBURNE, J.

Aime Valcour brought his petition to the public service commission asking to have the village of Morrisville ordered to supply him with electricity. From an order directing the village to supply electric energy to him from its unsold surplus, upon the terms and conditions set forth in its contract of service whereby it sells electric energy to consumers residing in his vicinity, the village has appealed.

Petitionee is a municipal corporation operating an electric utility within the corporation limits and distributing and selling considerable electricity outside these limits. It generates its electric energy within the State by means of water power, and, in the location, construction, and maintenance of its generating plant, and in acquiring flowing and ponding rights and rights of way, and in the establishment and maintenance of its lines for transmission of electric energy, has, by the provisions of its charter, power to take property by the exercise of the right of eminent domain. See section 9 of No. 185 of the Acts of 1894, and sections 16 and 17 of No. 313 of the Acts of 1910. It runs its electric lines in the public highways at some points outside its limits, but the two lines next mentioned are not in the highway except that the wires cross the highway in one or two places. It has a high tension line outside its limits passing not far from petitioner's farm and conveying current to the electrical department of the village of Stowe. Petitioner's farm is located in the town of Stowe upon a road running approximately north and south and intersecting the main highway from Morrisville to Stowe at an acute angle. Current from the high tension line is transformed and furnished to several farms upon petitioner's road, among which are the Stowe town farm .5 of a mile southerly of petitioner's farm and the Davis building .4 of a mile northerly. Petitioner has been a customer of petitionee, but since certain litigation between the parties relative to the destruction of petitioner's barn by fire attributable to petitionee's negligence, has been without electricity. The former litigation came before us upon a demurrer and we then held, Valcour v. Village of Morrisville, 104 Vt. 119, 132, 158 A. 83, that the village had the right to dispose of its surplus current outside its own limits and to extend its equipment as might be necessary for that purpose; that in such operations it was not acting as a public utility, but its relations with its customers were purely contractual; that it had no authority as a public utility to operate outside its limits; that it had no special legislative authority so to act; and that it had no authority to operate outside its limits except by contract.

This petition, however, is based upon P. L. 6453, which reads as follows:

"A person, association, company or corporation, its successors, grantees, lessees, trustees or...