Twin Village Water Co. v. Damariscotta Gas Light Co. , 98 Me. 325 ( 1903 )

Savage, J.

The plaintiff corporation was chartered by special act of the legislature, Private and Special Laws of 1893, c. 607. It was authorized “to furnish water for the extinguishment of fires and for domestic, sanitary and municipal uses to the towns of Nobleboro, Newcastle and JDamariscotta, and the inhabitants thereof, and to furnish electric lights for lighting streets in said towns, and to dispose of electric light and power to individuals and corporations.” By section 11 of the incoporating act as subsequently amended, it was provided that “in case no portion of the works of this corporation shall have been put into operation within two years from the date of the approval of this act, the rights and privileges herein granted shall be null and void.” The corporation, within the four years after the approval of the act, did put into operation a water system, but it has never operated an electric lighting plant, nor made any provisions therefor, except, as it claims, it built its pumping station of sufficient size, and installed boilers and engines of sufficient capacity, to operate an electric lighting plant, in addition to the requirements for pumping.

The defendant is a corporation organized, subsequently to the incorporation of the plaintiff, under the general laws of the State relating to the incorporation and control of gas and electric companies. Laws of 1895, ch. 102. The defendant is a gas company and it admits that in accordance with the purposes expressed in its articles of incorporation, it intends, unless enjoined, to make, generate, sell, distribute and supply light (gas) in and to the town of Damariscotta, and to persons and corporations therein.

The plaintiff claims, inasmuch as it was itself authorized, prior to the incorporation of the defendant, to make and supply electricity in and to Damariseotta, that the defendant has no authority, in the absence of special legislative authority, to make and supply gas in the same town, and seeks an injunction.

The plaintiff relies upon the last sentence in section 1, eh. 102 of the Laws of 1895, under which chapter the defendant was incorporated. It reads as follows: — “But no corporation, organized hereunder, shall have authority, without special act of the legislature, to make, generate, sell, distribute or supply gas or electricity, or both, for any purpose, in or to any city or town, in or to which another company, person or firm, are making, generating, selling, distributing or supplying, or are authorized to make, generate, sell, distribute or supply gas or electricity, or both.” And the only question presented for our consideration, is whether, when a corporation, person or firm is already authorized to do, but is not doing, an electric lighting business in a town, another corporation organized under chap. 102 of the Laws of 1895, can lawfully do a gas lighting business in the same town, unless specially authorized by the legislature. We think the question must be answered in the negative.

The learned counsel for the defendant contend that it should be determined from the language itself that “the legislature has said in terms that no corporation organized to supply gas can without special act of the legislature supply gas in any town where another compan}’ is authorized to supply gas;” nor can a pompany organized to supply electricity do so without like special authority, in a town where another company is authorized to supply electricity; nor can a company organized to supply gas and electricity] do so, without special authority in a town where another company is authorized to supply gas and electricity. It is argued that the use of the phrase “gas or electricity or both,” the three constituent parts being connected by the word “or,” demonstrates as a matter of English that the entire sentence can be split up into the three different sentences, the word “or” being used entirely in the interest of compactness. To express the contention more pointedly, it is that, by fair construction of the statute, authority to supply gas is prohibitive of another corporation’s right to supply gas and gas alone; of electricity, is prohibitive of electricity alone, and of gas and electricity is prohibitive of both; and conversely, authority to supply electricity is not prohibitive of gas, to be supplied by another.

If such were the intended meaning of the legislature the language chosen to express it was singulary unfortunate, even as an effort at compactness. It seems perfectly clear to us that the intended meaning is otherwise. Language could hardly make it clearer. To construct three sentences out of this one and oppose gas to gas, electricity to electricity, and both to both, and not otherwise, is something that the court cannot do. The legislature by amendment can. The act plainly says that no corporation organized under the general law shall supply gas in a town where another corporation is authorized to supply gas, or where it is authorized to supply electricity, or where it is authorized to supply both. And under the same conditions, such corporations cannot supply electricity or both gas and electricity. The defendant coporation is within the second alternative just expressed. It cannot lawfully supply gas in a town where the plaintiff is authorized to supply, electricity.

It should be observed that corporations organized under the act of 1895 are quasi public corporations, and enjoy valuable public franchises. Besides the general franchise to do business they possess authority to dig up the streets, to lay pipes for gas, and to erect poles and string lines of wire for electricity, having first obtained permit from the municipal officers. Such franchises, of course, can be acquired only by authority of the legislature, either general or special. And no general rights, such as these franchises, existed prior to 1895, except the permissive rights given by chap. 378 of the Public Laws of 1885, “regulating the erection of posts and lines for the purposes of electricity.” That act granted no franchises. Prior to 1895, it had seemingly been the policy of the legislature to keep the granting of such franchises within its own hands, to grant or withhold them as it deemed best, to determine whether the public good demanded that such franchises should be granted at all to any one, and in case such franchises were already lawfully exercised in a given place to determine whether or not it would be for the public good to permit indiscriminate and perhaps destructive competition.

A Ithough the organization of many kinds of corporations had been provided for by general laws, even of public service corporations like railroads, (with the approval of the railroad commissioners), still the legislature prior to 1895 reserved to itself the privilege of saying in each particular case whether the public good in a community which was served by a gas company, or by an electric light company, would be improved by granting a franchise to another gas company to dig up the streets for its pipes, or to an electric light company to further incumber the streets with its poles and wires; whether the first company had failed to exercise its franchise fairly and upon fan terms; whether the public good required its investments to be jeopardized, and whether, in fine, there was any such need of more or different light as would justify the granting of such franchises. And in the same manner it made its determinations, if another company was authorized to supply, but was not actually supplying, light.

As we construe the act of 1895, the former policy of the legislature was modified by that act to this extent. In towns where no gas or' electric company is supplying or is authorized to supply gas or electric light, new corporations, organized under the general law, can supply either gas or electricity, or both, and use the streets therefor, by first obtaining the statutory permit from the municipal officers. But in towns where a gas or electric company is supplying, or is authorized to supply, either or both kinds of light, another corporation .organized under the general law cannot operate until the legislature has determined whether the public good requires it, and has authorized it, precisely as was done prior to 1895.

The plaintiff corporation is authorized to supply electricity to and in Damariscotta. The defendant corporation cannot lawfully supply gas in the same territory, without special act of the legislature. If it should do so, in accordance with its admitted intention, it would be to the injury of the plaintiff’s right. The temporary injunction already granted should be made perpetual, and a decree to that effect will be made below.

Bo ordered.