Vill. of Swanton v. Town of Highgate

• Decision Date: 07 May 1908
• Citation: 69 A. 667,81 Vt. 152
• Parties: VILLAGE OF SWANTON v. TOWN OF HIGHGATE.
• Court: Vermont Supreme Court

69 A. 667

81 Vt. 152

VILLAGE OF SWANTON

v. TOWN OF HIGHGATE.

Supreme Court of Vermont. Franklin.

May 7, 1908.

Exceptions from Franklin County Court; Seneca Haselton, Judge.

General assumpsit by Swanton Village against the town of Highgate to recover taxes paid under protest. Affirmed.

Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

E. A. Ayers, for plaintiff. D. W. Steele and H. C. Royce, for defendant.

ROWELL, C. J. This is assumpsit for money paid under protest for taxes assessed by the defendant in 1905 on the plaintiff's water power on the falls of the Missisquoi river, known as Highgate Falls, land connected therewith, a sawmill and a gristmill thereon, and an electric light plant and wires, all situate in the defendant town, and owned and operated by the plaintiff. The village was incorporated by No. 252, p. 268, Acts 1888, section 31 of which authorized it to borrow money, among other purposes, "to defray the expense of putting in electric lights, and purchasing the necessary power for same in said village," and to issue its bonds or notes therefor. Section 32 (page 289), authorized it, among other things, "to light the streets of said village by electric lights or otherwise as said village may elect." Section 31 of the charter was amended by No. 93, p. 132, Acts 1890, whereby the authority was continued to borrow money, and in a larger amount, among other purposes, "to defray the expense of putting in electric lights and purchasing and providing the necessary power for the same, or of otherwise lighting said village." Section 32 of the charter was amended by No. 193, § 2, p. 251, Acts 1894, whereby the village was authorized, among other things, "to light the streets of the village by electric lights or otherwise as the village may elect; and to furnish water, electric lights and electric power to parties residing without the corporate limits of the village," on such terms as the parties agreed. The plaintiff claims that said property was exempt from taxation because used for a public use within the meaning of the statute exempting property thus used. Pub. St. 1906, § 496, subd. 6. The property was then used, and is still used, to light the plaintiff's streets, to supply its inhabitants and their public buildings with lights, to light the streets and supply the inhabitants and the public buildings of that part of the physical village of Swanton that is without the corporate limits of the plaintiff, and within the town of Swanton, and, in like manner, to light the streets and supply the inhabitants of the villages of Highgate Center and Highgate Falls in the town of Highgate.

The defendant contends generally, and apart from any of the characterizing features of this case, that the ownership and use of property by a municipality for the purpose of generating and furnishing electric light to light its streets and public places, and to supply lights to its inhabitants, is not a public use within the meaning of the statute that will exempt the property from taxation. This proposition takes no note of legislative authority, whether present or absent. If present, it is one thing. If absent, it is quite another thing. It being present here as far as the plaintiff's use for its own purpose is concerned, we have no doubt that that use is a public use within the meaning of the statute, for it is distinctively a public service, as it benefits the people, conserves the public peace, and protects both persons and property, for darkness invites disorder and encourages crime. And, besides, it is, and for a long time has been, the custom of the country to light the streets and public places of cities and populous villages at the public expense, and courts must have regard to this course and usage of government, and to the objects for which taxes have been levied by a long course of legislation, and what objects and purposes have been considered necessary to the support, and for the proper use, of the government, whether state or municipal; and whatever lawfully pertains to this, and is sanctioned by time and the acquiescence of the people, may well be held to belong to the public use, and proper for the maintenance of good government, though this may not be the only test of rightful taxation. Loan Association v. Topeka, 20 Wall. (U. S.) 655. 665, 22 L. Ed. 455; Cooley's Const. Lim. (6th Ed.) 655; Town of Bennington v. Park, 50 Vt. 178, 193; Opinion of the Justices, 150 Mass. 592, 24 N. E. 1084, 8 L. R. A. 487.

As to furnishing lights to plaintiff's inhabitants, it is to be noticed that the charter does not expressly authorize it. But the plaintiff claims that the amendment of 1890 impliedly authorizes it, for that its language is different and broader in scope than the...