Inhabitants of West Springfield v. West Springfield Aqueduct Co.

Field, C. J.

The requests for rulings made by the town of West Springfield, and the rulings of the commissioners, appear in their report.

The first request is, that the commissioners cannot award a greater sum than seventy-five thousand dollars. By St. 1875, c. 138, § 7, the town is authorized to take by purchase or otherwise “ the franchise of said corporation, and all its corporate property, at such prices as may be agreed upon between the parties ”; and in case they cannot agree upon the price to be paid therefor, this court or one of its justices is authorized to appoint three commissioners to “ determine and award what sum said town shall pay for said franchise and its corporate property, which award shall be final.”

The ground on which the town contends that the’ award cannot exceed seventy-five thousand dollars is, that by the fifth *133 section of the statute the corporation is authorized to hold real and personal estate not exceeding in amount sixty thousand dollars in value, and it is therein provided that “the whole capital stock shall not exceed seventy-five thousand dollars,” etc.; and by the eighth section it is provided that, “For the purposes of defraying the costs of such franchise and corporate property as may be taken or purchased for the purposes aforesaid, the town of West Springfield shall have authority to issue, from time to time, notes, bonds, or certificates of indebtedness, to be denominated 6 West Springfield Water Bonds,’ to an amount not exceeding seventy-five thousand dollars,” etc. These provisions perhaps indicate an opinion on the part of the Legislature, that the price of the franchise and of all the corporate property of the corporation probably would not exceed seventy-five thousand dollars, if the town should vote to take the franchise and property under the seventh section, but it is not made a condition of the right of the town to take or purchase the property that the sum to be paid or awarded shall not exceed seventy-five thousand dollars. The nature of the right of the town, and the effect of its vote, are shown by the decision in Braintree Water Supply Co. v. Braintree, 146 Mass. 482. It is plainly the intention of the St. of 1875, c. 138, that the commissioners, if appointed, should determine the price or value of the franchise and the corporate property, and that the corporation should not be compelled to part with its franchise and property except upon being paid a price which had been agreed upon between the parties, or had been determined by the commissioners. If more money is needed to pay for the property than can be derived from the notes, bonds, or certificates of indebtedness to be issued under the eighth section of the statute, the town must raise the remainder in some other way. The town has the ordinary powers of towns to raise money by taxation, and the authority given to the town to buy or take the property impliedly authorizes the town to raise the money to pay for it.

By St. 1884, c. 36, the company was authorized to “ issue bonds, and secure the same by a mortgage on its franchise and other property, to an amount not exceeding its capital stock actually paid in,” etc. The contention of the company is, that, *134 as by the original act the capital stock might be $75,000, the intention of St. 1884 was that bonds secured by a mortgage might be issued to a corresponding amount, if the stock was all issued and paid in, and that the stock and mortgage bonds of the company might be regarded as capitalized at$150,000. It appears by the report of the commissioners that the company had issued some bonds which had been secured by a mortgage on its property and were outstanding at the date of the award, and the award is made upon the condition that the company shall pay the outstanding bonds and procure the mortgage to be discharged. It nowhere appears in the report what the amount is of the capital stock of the corporation actually paid in, or of the bonds actually issued. Whether this authority to issue bonds can be regarded as an extension of the amount of real and personal property which the company, by St. 1875, c. 138, is authorized to hold, we think it unnecessary to decide. If the company owns real or personal estate adapted to the purposes of its incorporation beyond the amount prescribed by the Legislature, this fact, we think, cannot avail the town. The town must pay the value of the property the corporation owns, if it is property which pertains to the purposes for which the company was incorporated, even although the amount of property exceeds that which the corporation is authorized to hold. This limitation of the amount of property has been imposed by the Legislature for public reasons, and it may be enforced by the Commonwealth, but the town cannot take advantage of it to obtain the title to any of the property of the corporation without paying its value. Slater Woollen Co. v. Lamb, 143 Mass. 420. Heard v. Talbot, 7 Gray, 113, 120.

The second request is based on the eleventh section of the statute of 1875. This section is as follows: “This act shall take effect upon its passage, and shall become void unless the work is completed within one year.” This means, we think, that the works shall be completed within a year from the passage of the act, so that the company may be able to supply the town of West Springfield and its inhabitants with water; but it was not intended that after the expiration of the year the works might not be extended to meet the growing necessities of the town or its inhabitants. It does not appear in the *135 papers before us that after the expiration of the year the company took any water, land, or water rights; but assuniiing that such is the fact, the practical construction put upon similar statutes has been that any water, land, or water rights which an aqueduct company is authorized to take may be taken from time to time according to the needs of the company, and that the power of the company is not exhausted by the first taking. It would require clear language to defeat such a construction, because from the changes which may occur it often becomes necessary that new sources of water should be taken or additional works built in order properly to supply the town and its inhabitants with water. We are of opinion that the phraseology of § 11 of St. 1875, c. 138, does not require the construction contended for by the petitioner. Sudbury Meadows v. Middlesex Canal, 23 Pick. 36, 51. Woodbury v. Marblehead Water Co. 145 Mass. 509, 512. Dwight Printing Co. v. Boston, 164 Mass. 247, 253.

The third request, we think, was properly modified by the commissioners. It depends upon the question whether the charter of the company was intended to give to it the right to take and hold land, water, and water rights from time to time, as it might need them in order to supply the town and its inhabitants with water, and whether such right will pass to the town if the award is confirmed. As we have said, we think that this is the proper construction of the charter, and that the right passes to the town. We cannot say, as matter of law, that the right to take additional land, water, and water rights, if found necessary, which the town has acquired by its purchase, is not of some value, and that the commissioners could not properly consider it.

We perceive little or no difference between the fourth ruling requested and that given. The fact that the town had the right by vote to purchase the franchise and corporate property at any time upon the terms expressed in the charter was a fact which might be considered in determining the value of the franchise. We cannot say, as matter of law, whether it would enhance or diminish the value.

The award should be accepted and confirmed.

Ordered accordingly.