Opinion
No. 3321.
Decided November 4, 1942.
The vote of a lighting precinct which unconditionally rejected a proposition of a utility for the sale of its power plant for a specified sum, terminated all proceedings for the acquisition of the property for a period of two years (Laws 1935, c. 153, s. 4). In such case a subsequent vote of the precinct that it petition the Public Service Commission to determine both the price to be paid for the plant and also all questions arising from the failure of the precinct to ratify "the agreement to purchase the plant and property" is nugatory.
APPEAL, from an order of the Public Service Commission denying defendant's motions to dismiss the petition of the Bartlett and North Conway Lighting Precinct, in which the precinct prays "for a determination of all questions arising out of the failure on the part of the precinct to ratify the agreement to purchase" the Conway division of the White Mountain Power Company and especially to determine "the property to be conveyed and price to be paid for same in accordance with Sec. 8, of Chapter 153, Laws of 1935 as amended."
At a meeting of the precinct held July 2, 1940, it was voted "that the precinct acquire or establish and maintain and operate a suitable municipal plant for the purpose of supplying through the whole or any portion of the municipality electricity for the use of its citizens and others and for such other purpose as the municipality may from time to time authorize and direct."
Thereafter, upon July 20, 1940, the Precinct Commissioners wrote to the company, informed it of the above vote, and inquired "whether the White Mountain Power Company elects to sell in the manner provided by law, that portion of its plant and property located within said municipality which is suitable for and used in connection of [sic] the business of said utility and that portion, if any, lying without said municipality which the public interest may require the said municipality to purchase." The letter continued as follows:" The undersigned Commissioners desire to purchase all of the Conway division of the White Mountain Power Company which formerly belonged to the Goodrich Falls Electric Company, with extensions or additions."
To this letter the company replied under date of September 16, 1940, that, if paid in cash by December 31, 1940, it was willing to sell its property, which was listed in two schedules, A and B, for the sum of $280,000.
A special meeting of the precinct was accordingly held upon November 7, 1940, for the following purpose: "To see if the precinct will ratify the agreement made by the Commissioners of the Bartlett North Conway Lighting Precinct and the White Mountain Power Company relative to the purchase by the precinct of the electric plant and facilities of said utility serving North Conway, Kearsarge, Bartlett and Jackson, N.H., in accordance with Chapter 153, Laws of 1935 as amended by Chapter 158, Laws of 1937." A motion to ratify, made and seconded in accordance with this warrant, failed to receive a two-thirds vote, and the moderator, therefore, announced that the motion was not carried.
Thereafter, at the annual meeting of the precinct, held upon March 28, 1941, it was voted: "That the Bartlett and North Conway Lighting Precinct petition the Public Service Commission for a determination of the price to be paid for the plant and property known as the Conway Division of the White Mountain Power Company lying within the precinct together with that part of said Conway Division lying without the precinct, if any, which the public interest requires the precinct to purchase, and for a determination of all questions arising as a result of the failure of the precinct to ratify the agreement to purchase said plant and property." The Precinct Commissioners accordingly filed the present petition to the Public Service Commission upon April 23, 1941. The power company filed three separate motions that the petition be dismissed, which were denied by the Commission and the hearing before it was suspended to permit the transfer to this court of the questions of law involved in their denial.
Other facts are stated in the opinion.
Mayland H. Morse and George R. Grant, Jr. (Mr. Morse orally), for the plaintiff.
Arthur A. Greene and Arthur A. Greene, Jr. (Mr. Arthur A. Greene, Jr., orally), for the defendant.
Frank R. Kenison, Attorney-General, and Ernest R. D'Amours, Assistant Attorney-General (Mr. D'Amours orally), for the Public Service Commission.
Two of the grounds for dismissal, urged by the appellant, are as follows: 1. That the vote of the precinct to "acquire or establish and maintain and operate a suitable municipal plant for the purpose of supplying [electricity] through the whole or any portion of the municipality" did not authorize the Precinct Commissioners to negotiate with the company for the purchase of all the North Conway division of the White Mountain Power Company, a part of which division lay outside the precinct; that in so doing, the Precinct Commissioners exceeded their authority, and that this lack of authority invalidates all subsequent proceedings of the precinct.
2. That the voters of the precinct, having, on November 7, 1940, failed to ratify the purchase agreement by a requisite two-thirds vote, the proceedings to acquire or purchase terminated and may not now be revived in the manner sought under the pending petition.
It is unnecessary to consider the somewhat difficult questions of law involved in the first of these contentions, since we think that the second is well founded.
In rejecting this contention, the Commission said: "To adopt this view would be to disregard and nullify the plain language of Section 8, which permits either the municipality or the utility to petition this Commission for a determination of pertinent questions and matters in dispute. . . . This right of the municipality to petition the Commission is given specifically `if the municipality does not ratify the agreement to purchase.' . . . The phrasing of the statute, in our opinion, indicates that the Legislature intended to permit recourse to this Commission under just such conditions as appear in this proceeding."
Section 7 of the act provides that no agreement for purchase negotiated by the commissioners of a village district shall "be binding . . . upon any town or village district until ratified by the voters of said town or village district in the manner provided in Section 4 hereof for votes in towns or village districts." The important provision of Section 4, here referred to, is as follows: "If such vote is unfavorable no like vote shall be passed within two years thereafter." We think it plain that the unconditional vote of the precinct, which failed to ratify the agreement of the Commissioners and the company, had the effect of terminating the pending proceedings for the acquisition of the property of the appellant and that those proceedings could not be revived five months later by the petition in question. By the vote of November 7, the precinct unconditionally rejected the proposal of the Commissioners, and the statute provides that "if such vote is unfavorable, no like vote shall be passed within two years thereafter." The subsequent vote upon March 28, 1941, to petition the Commission for a determination of all questions arising as a result of the failure of the precinct to ratify the agreement to purchase was, therefore, unlawful and nugatory for the purpose of invoking the judgment of the Commission in the premises. Upon this ground the petition should be dismissed.
The view of the Commission set forth above, that this construction disregards and nullifies the plain language of Section 8, is not a necessary conclusion. Our decision has reference only to an unconditional rejection of a proposed contract by the precinct. If, in the present instance, the voters had been given a chance to vote upon alternative proposals, i.e., to ratify the proposed contract or to petition the Commission for a determination of the price to be paid, the statute would have been complied with and the petition might have been maintained if the second alternative had been adopted. The language of Section 4, however, clearly indicates a policy that agitation for municipal ownership of lighting facilities shall not be continuous, but shall be terminated for two years by an unfavorable vote. We think it more important to vindicate this policy than to give the greatest possible extension to the authority of the Commission in such cases.
Defendant's petition dismissed.
MARBLE, J., did not sit: the others concurred.