Village of Waterbury v. Emery A. Melendy

• Decision Date: 03 May 1938
• Citation: Village of Waterbury v. Emery A. Melendy, 199 A. 236, 109 Vt. 441 (Vt. 1938)
• Parties: VILLAGE OF WATERBURY v. EMERY A. MELENDY ET AL
• Court: Vermont Supreme Court

199 A. 236

109 Vt. 441

VILLAGE OF WATERBURY v. EMERY A. MELENDY ET AL

Supreme Court of Vermont

May 3, 1938

February Term, 1938.

Presumption as to Constitutionality of Statute---Extent of Separation of Governmental Powers---Delegation of Legislative Functions---Delegation to Political Subdivisions of Powers to Govern Local Matters---Delegation of Power to Assess Abutting Landowners for Street Improvements, etc.---Status of Municipality under P. L. 4980 Relating to Apportionment of Expense of Flood Control Project---Uncertainty as to Benefits Included under P. L. 4980---Delegation to Administrative Agencies of Duties as to Application of Laws---Delegation of Authority to Make Law and Authority as to Its Execution Distinguished---Unconstitutionality of Law Sanctioning Arbitrary Action by Officials---Propriety of Delegation Dependent on Facts---P. L. 4980 Held Unconstitutional---Validity Not Affected by Provision for Appeal.

1. Every presumption is to be made in favor of the constitutionality of an act of the Legislature, and it will not be declared unconstitutional without clear and irrefragable evidence that it infringes the paramount law.

2. Under American constitutional system governmental powers are divided among the legislative, executive and judicial departments and each of these is separated from the others though an absolute and entire separation of functions would be impracticable if not impossible.

3. Functions of Legislature which are purely and strictly legislative cannot be delegated but must be exercised by it alone.

4. The general doctrine prohibiting delegation of legislative authority has no application to vesting in political subdivisions of powers to govern matters which are local in scope, of which parties immediately interested are supposed to be better judges than the Legislature.

5. Legislature may delegate to municipal corporations, either by charter or other legislation, power to assess abutting landowners for part or all of expense of local street improvements, waterworks installations and sewers, provided such assessments are at least approximately proportionate to benefits received by the property, measured by its frontage area, value or some combination of these factors.

6. Under P. L. 4980 providing that public service commission shall apportion between State and municipalities benefited expense incurred by State in connection with public works for flood control constructed under P. L. Ch. 207, municipality is mere conduit and ultimate burden of assessment is placed upon individual taxpayers of town and must be borne by each in proportion to amount of his taxable property without regard to whether or not such property receives special benefits.

7. Under provisions of P. L. 4980 empowering public service commission to apportion expense incurred by State in connection with public works for flood control between State and municipalities "in accordance with the benefits received" there is neither certainty as to what benefits are included nor such a fixed legal standard express or implied, as law requires for determining those benefits.

8. Delegation to administrative agencies of duties connected with application of laws must not encroach upon strictly legislative functions of Legislature.

9. Legislature cannot delegate authority to make the law, which necessarily includes a discretion as to what it shall be, but may, under certain circumstances, confer authority or discretion as to its execution.

10. Any law which authorizes issuing or withholding of licenses permits or approvals, or sanctions other administrative functions in such manner as designated officials arbitrarily choose, without reference to all of class to which law under consideration was intended to apply and without being guided or controlled by any definite rule or specified conditions to which all similarly situated may conform, is unconstitutional and void.

11. Each case of questioned delegation of legislative authority must depend upon facts of that particular case.

12. P. L. 4890, providing that public service commission shall apportion between State and municipalities expense incurred by State in connection with public works for flood control "in accordance with the benefits received" is in conflict with the Constitution of Vermont and void, since Legislature has indicated no policy or plan for such apportionment, nor stated directly nor by implication the nature or kind of benefits referred to, nor given any rule or standard by which benefits are to be determined and assessments made, and since commission, in order to act, must say what the law shall be and not merely exercise discretion in its execution.

13. Provision for appeal to Supreme Court from assessment of municipality by public service commission under P. L. 4980 for benefits received from public works for flood control does not make the law constitutional, since Supreme Court would be obliged to decide same questions as to what the law should be that would confront the commission, and judicial legislation is no less objectionable than legislation by an administrative agency.

APPEAL IN CHANCERY. Bill seeking to enjoin members of board of public works and of public service commission and attorney general from proceeding under P. L. 4980 to apportion between State and municipalities benefited, including plaintiff village, expense incurred by State in connection with certain public works for flood control on ground that P. L. 4980 is unconstitutional. Twelve municipalities, by leave of the court intervened as parties plaintiff. The defendants demurred. Heard on the bill and demurrer at the September Term, 1937, Washington County, Sturtevant, Chancellor. Decree overruling demurrer and granting permanent injunction prayed for. The defendants appealed. The opinion states the case.

Decree affirmed.

Lawrence C. Jones, Attorney General, for the defendants.

Fred E. Gleason (David F. Hoxie of counsel) for the plaintiff, the Village of Waterbury.

Peter Giuliani, City Attorney (George L. Hunt of counsel) for the intervening plaintiff, the City of Montpelier.

H. C. Shurtleff for the intervening plaintiff, the Town of Worcester.

Present: POWERS, C. J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.

OPINION

BUTTLES

The General Assembly of 1933 at a special session which convened July 19, 1933, enacted legislation which is now known as chapter 207 of the Public Laws. Such legislation provided for the creation of a board of public works which should consist of the members of the state highway board ex officio. Such board of public works was authorized, with the written approval of the governor, "to cooperate and contract in the name and on behalf of the state with the Federal government in the construction and maintenance of any public works project prepared by the Federal Emergency Administrator of Public Works or other Federal agency now or hereafter created; to accept grants, loans and assistance from the Federal government for the construction, repair, improvement or carrying out of such projects as such board with the written approval of the governor shall designate; to acquire by gift, purchase, lease or by the exercise of the power of eminent domain any real or personal property, including property held for a public use, in connection with the construction or carrying out of any such project; to manage, control and maintain any such public works."

It is further provided that under the conditions therein specified such board of public works may petition the public service commission for the taking by the State under the power of eminent domain, of property in the State, or some easement or other limited right therein, and after notice and hearing and the making of the required findings such commission shall authorize the taking of such property and shall assess the compensation to be paid therefor. Appeal to the Supreme Court on the matter of compensation is provided for.

Section 4980 of said chapter reads thus: "Whenever any public works for flood control constructed under the provisions of this title are completed, the board of public works shall petition the public service commission to apportion the expense incurred by the state including the damages to any person whose land is taken and the special damages which the owner of land adjoining shall sustain by reason of such construction, between the state and the municipalities in accordance with the benefits received. The public service commission shall thereupon set a time and place for hearing and shall give twelve days' notice thereof to the state and the municipalities benefited." The following section provides that the commission shall transmit to each town treasurer a notice of the amount assessed against each town; that such treasurer shall transmit such notice to the selectmen of the town who shall draw an order on the treasurer for the amount of such assessment; that such treasurer shall pay the same to the state treasurer, and if the funds in the hands of the treasurer belonging to the town are not sufficient for the purpose, the selectmen shall borrow the necessary amount. Appeal to the Supreme Court from the decision of the commission on the apportionment of expense is provided for.

Having completed, pursuant to said chapter, three several public works projects known respectively as the "Montpelier Channel Cleaning including Clothes Pin Dam," the "East Barre Flood Control Project," and the "Wrightsville Flood Control Project," said board of public works by its petition to said commission dated September 11, 1936, and various amendments thereto prayed said commission to apportion the expense of said projects between the State and some twenty-four municipalities alleged...