van Buren Light & Power Co. v. Inhabitants of van Buren

• Decision Date: 19 February 1920
• Parties: VAN BUREN LIGHT & POWER CO. v. INHABITANTS OF VAN BUREN.
• Court: Maine Supreme Court

109 A. 3

VAN BUREN LIGHT & POWER CO.

v. INHABITANTS OF VAN BUREN.

Supreme Judicial Court of Maine.

Feb. 19, 1920.

Exceptions from Supreme Judicial Court, Aroostook County.

Action of assumpsit by the Van Buren Light & Power Company against the Inhabitants of Van Buren. On exceptions to rulings of the presiding justice directing a verdict for defendant. Exceptions overruled.

See, also, 116 Me. 119, 100 Atl. 371.

Argued before CORNISH, C. J., and HANSON, DUNN, WILSON, and DEASY, JJ.

Shaw & Thornton, of Houlton, for plaintiff.

George J. Keegan, of Van Buren, Archibalds, of Houlton, and Powers & Guild, of Ft Fairfield, for defendant.

DEASY, J. Action of assumpsit brought to this court on exceptions to the ruling of the presiding justice directing a verdict for the defendant. Statement of Case.

The plaintiff corporation was chartered by special act of 1909 (chapter 88). The portion of said act material to this case is a part of section 5, as follows:

"Said corporation is hereby authorized to make contracts with the towns of Van Buren and Hamlin, relative to lighting the streets of said towns and for other public purposes, corporation or corporations and individuals, * * * and said towns and said corporations and individuals are hereby authorized to enter into such contracts with the Van Buren Light & Power Company, the towns by their selectmen, and other corporations by their president and directors, or other officers."

At a town meeting held on June 9, 1911, it was voted to authorize the selectmen to contract with the company. A part of the selectmen were stockholders. For this reason the vote of June 9th was afterward rescinded. No rights are claimed under the vote passed at this meeting.

Another town meeting was held on July 19, 1911. It is not questioned that this meeting was duly called by a warrant containing appropriate articles, or that a quorum of voters was present. At this meeting it was voted "to contract with the Van Buren Light & Power Company for lighting the streets of said town of Van Buren village," and voted "to choose a committee of three on behalf and as agents of said town of Van Buren to contract with the Van Buren Light & Power Company for lighting the streets of said Van Buren village." At the same meeting Fred J. Patent, Auguste Violette, and O'Neil Levasseur were chosen as a committee to make the contract.

The committee thus chosen entered into a 15-year contract with the company, which is the contract in suit. The case shows that, in pursuance of the contract, the company installed its plant, furnished light as required by the contract, and down to April 1, 1915, was paid the stipulated compensation, but that since that date while the company has supplied light as set forth in the account annexed, nothing has been paid.

The declaration contains a count on the contract entered into by the committee and an account annexed for lights and small items supplied between April and June, 1915, and between November, 1915, and April, 1917. It also contains common counts. Liability on Express Contract.

The defendant contends that the contract is not binding on it because in making the contract the town acted by a committee and not by the selectmen as provided by section 5 above quoted.

In effect the charter reads: "The town is authorized to contract by its selectmen." This language imposes upon the town no duty to contract. It confers a power to be exercised at the option, not of the selectmen, but of the municipality. The power lies dormant until vivified by a vote of the town.

Having determined to exercise its power a town thus authorized may go further and by vote settle all the terms and conditions of the contract. In such case it may employ any hand to execute it. A committee other than the selectmen may he appointed for this purpose. Winterport v. Water Co., 94 Me. 215, 47 Atl. 142, 1045.

But it is not essential that the town by vote agree upon the details of the contract. It may do this through agents. Governmental powers cannot be delegated. But negotiating and agreeing upon a contract is not a governmental, but an administrative, function which may be delegated. It is a "mere business act, and in its power to perform it the city differs in no respect from an ordinary business corporation or an individual, and it may delegate the power to perform such acts to agents or committees." Kramrath v. Albany, 127 N. Y. 580, 28 N. E. 400; Biddeford v. Yates, 104 Me. 500, 72 Atl. 335, 15 Ann. Cas. 1091; Renting v. Titusville, 175 Pa. 512, 34 Atl. 918; Burge v. Rockwell, 120 Iowa, 495, 94 N. W. 1103; Burlington v. Dennison, 42 N. J. Law, 167.

But the right of delegating its powers to agents is by the charter now in question limited and restricted. Only the selectmen may be so employed. If the town had made its contract and by vote settled its terms, a committee could have been appointed as a mere instrumentality to execute it. Instead it elected to enter into the contract by agency. It disregarded the limitation contained in the charter. The contract made by the committee was not binding on the town.

It is urged that by force of the general statute (R. S. 1903, c. 4, § 76) the contract is valid. This general statute authorizes municipalities to make contracts for municipal lighting for terms of years and contains no limitation or direction as to the agency through which they may act.

But the charter of 1909, being the later and more specific expression of the legislative will, controls if the general law is inconsistent with it. Isham v. Bennington Iron Co., 19 Vt. 248; Camp v. Wabash R. Co., 94 Mo. App. 272, 68 S. W. 98; Ilarlig v. Seattle, 53 Wash. 432, 102 Pac. 410; State v. Valentine (Tex. Civ. App.) 198 S. W. 1009; Rankin v. Gaston County, 173 N. O. 683, 92 S. E. 719; Sutherland on Star. Construction (2d Ed.) 465; 36 Cyc. 1094; Rodgers v. United States, 185 U. S. 83, 22 Sup. Ct. 582, 46 L. Ed. 819; Dahnke v. People, 168 Ill. 102, 48 N. E. 140, 39 L. R. A. 197. Alleged Ratification.

It appears that at an annual town meeting held subsequently to the execution of the contract a vote was passed to approve and accept it. But there was no article in the warrant for the meeting upon which such vote could be legally based. The only article shown in evidence was: "Art. 19. To transact all other business." This was clearly Insufficient to support the vote of ratification. Lovejoy v. Foxcroft, 91 Me. 370, 40 Atl. 141. Form of Action.

But for another reason the present action cannot be maintained upon the special count. The declaration is in assumpsit. The contract relied upon to support it is executed under the seals of both parties thereto. For breach of such a contract only an action of debt or covenant will lie. Dunn v. Motor Co., 92 Me. 168, 42 Atl. 389; Drew v. Western Union Telegraph Co., 111 Me. 346, 89 Atl. 144. Implied Contract.

The plaintiff, however, contends that the town, having enjoyed the benefits of the company's service, is liable on an implied contract, and that damages for breach...