Winterport Water Co. v. Inhabitants of Winterport

• Decision Date: 28 May 1900
• Citation: 47 A. 1045,94 Me. 215
• Parties: WINTERPORT WATER CO. v. INHABITANTS OF WINTERPORT.
• Court: Maine Supreme Court

47 A. 1045

94 Me. 215

WINTERPORT WATER CO.

v. INHABITANTS OF WINTERPORT.

Supreme Judicial Court of Maine.

May 28, 1900.

Dissenting opinion. For majority opinion, see 47 Atl. 142.

EMERY, J. My views are these: When the legislature imposes a public duty on a municipality or other public agency, the prescribed means and modes may often be regarded as directory only. When, however, the legislature merely confers a power or privilege, without duty, upon a municipality or other legislative creature, then the prescribed means and modes are express limitations upon the power or privilege, and must be strictly followed, whatever the inconvenience. 23 Am. & Eng. Enc. Law, 458, 465, and cases there cited. The statute in question here merely confers a power or privilege, without duty, upon a legislative creature. The legislature expressly, in terms, prescribed the particular agency by which the town was authorized to enter into a contract viz. "by its selectmen." We must assume that the legislature prescribed this particular agency advisedly and for a purpose. It may have intended thereby to impose checks and delays upon municipal action; but no matter what the purpose, those words were Inserted in the statute, and all the inconveniences and delays they occasion must be borne. If the parties desire to avail themselves of the statute. To my mind, the majority opinion is not supported by the cases cited, and its practical effect is to expunge from the statute words the legislature saw fit to insert, and to remove from the legislative grant a limitation the legislature saw fit to impose. I think this is beyond the legitimate power of the court, and hence that the water company is confined to its quantum meruit.