tion therefor, are not in violation of that clause of the state constitution which requires equal taxation, because of the fact that incidentally the purchasing municipality may be compelled to assume the obligation of the original water company to provide water for some individual takers who reside outside of its territorial limits.

6. If the village corporation, as purchaser of this property of the water company, should be obliged to furnish water for a few takers who reside outside the limits of the corporation, it must be assumed that it will receive a reasonable compensation therefor, so that the taxation of property within the village corporation will not be increased in the slightest degree by such purchase; but in any event this is merely incidental, and subsidiary to the main and primary object of furnishing water for its lawful public purposes under legislative authority.

7. Held: That the acts of the legislature of 1887 were sufficient to ratify and make valid the contract between the village corporation and the water company; that the act amending the charter of the Dover & Foxcroft Village Fire Company gave to that corporation, by express grant or by necessary implication, the authority to carry out that contract by a purchase of the water-works system, and, subsequent to such purchase, to maintain and operate the same; and that this legislation was not in violation of the provisions of our state constitution.

(Official.)

Report from supreme judicial court, Piscataquis county.

Bill of Josiah B. Mayo and others against the Dover & Foxcroft Village Fire Company and others, to enjoin the purchase of certain water works, and to restrain the creation of any debt or assessment or any tax by the village corporation on account of the purchase price. Case reported and bill dismissed. Argued before WISWELL, C. J., and WHITEHOUSE, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

O. D. Baker and J. B. Peaks, for plaintiffs. H. M. Heath, F. E. Guernsey, and C. W. Hayes, for defendants.

WISWELL, C. J. The Dover & Foxcroft Village Fire Company is a public corporation, consisting of portions of the territory of the adjoining towns of Dover and Foxcroft, and the inhabitants thereon, created by an act of the legislature approved March 20, 1863 (chapter 262, Sp. Laws 1863), with certain powers and for certain limited municipal purposes, which are stated as follows in the original act of incorporation: "Said corporation is hereby invested with power at any legal meeting called for the purpose, to raise money for the purchase, repair and preservation of one or more fire-engines, hose and apparatus for extinguishment of fire, for the procuring of water, and for the organizing and maintaining within the limits of said territory an efficient fire department."

The act of incorporation contained provisions in relation to the officers of the corporation; the manner in which money raised by the corporation for its authorized purposes should be assessed upon the property within the territory; authorizing the corporation to

borrow not exceeding the sum of $2,000 for its purposes; and in relation to a variety of other matters not necessary to be here considered.

On November 27, 1886, a written contract was entered into between this corporation and the Dover & Foxcroft Water Company, wherein the water company agreed to furnish, set, and maintain a certain number of hydrants, and additional hydrants as they might be required, and to furnish through such hydrants a constant and sufficient supply of water for protection against fire, for which the village corporation agreed to pay an annual rental. The contract contained numerous and detailed provisions as to the location, size, and character of the dam, standpipe, pumps, and pipe lines, and in general as to the construction and efficiency of the system of water works to be built by the water company.

The contract also contained this clause: "Item Eighteenth. At any time after ten years, and before fifteen years, from the time payments begin under this contract the said fire company shall have the right and privilege of purchasing of said water company all the buildings, reservoirs, fixtures, apparatus and property of said water company, with all its corporate rights and privileges at such a price as may be agreed on; and in case of disagreement between the parties the price shall be determined by three disinterested appraisers appointed by the chief justice of the supreme judicial court, none of whom shall be residents of Piscataquis county. When thus chosen and assembled such appraisers shall have power to determine finally and conclusively the amount which said fire company shall pay for the rights, property and franchise of said water company. The option of said purchase may be exercised by the said fire company either before or after such appraisal, if after, then within six months therefrom."

This contract was executed, upon the part of the village corporation, by its assessors, who were authorized to do so by a vote of the inhabitants at a meeting duly called for the purpose, and held at Mayo's Hall in the town of Dover on November 18, and, by adjournment, on November 27, 1886. At the first meeting a committee was appointed "to negotiate a contract for a fire service of thirty hydrants, at an annual rental, with some party, and report the same at an adjourned meeting." At the adjourned meeting the committee in their report submitted a draft of this contract with the water company, which was first discussed item by item, spread upon the records of the village corporation; and it was, then voted "that the assessors of the Dover and Foxcroft Village Fire Company be hereby instructed and authorized, in the name of the said fire company and in its behalf, to execute the contract this day reported by the committee on water works, and this day spread upon the records, whenever the same shall be executed on its part by the Dover and Foxcroft Water Company."

The Dover & Foxcroft Water Company, the other party to this contract, had shortly before its execution been organized under the general laws of this state relating to the organization of corporations; but in the following winter an act of the legislature (chapter 31, Sp. Laws 1887) was passed giving it certain powers. A portion of section 12 of this act is as follows:

"The existing contract between the said water company and the said Dover and Foxcroft Village Fire Company of date of November twenty-seven, in the year of our Lord one thousand eight hundred and eighty-six, is hereby confirmed and made legal and valid."

And the same legislature passed an act (chapter 260, Sp. Laws 1887), entitled, "An act to amend the charter of the Dover and Foxcroft Village Fire Company," the first three sections of which are as follows:

"Section 1. The proceeding of the incorporation and organization of the Dover and Foxcroft Village Fire Company are hereby confirmed and made valid; and all the proceedings of said corporation in calling, holding and acting in a meeting of said corporation, held in Mayo's Hall in Dover, on the eighteenth day of November, in the year of our Lord one thousand eight hundred and eightysix, and by adjournment thereof on the twenty-seventh day of November, in the year of our Lord one thousand eight hundred and eighty-six, and all the votes, acts and doings of said corporation at said meetings, are hereby ratified, confirmed and made valid.

"Sec. 2. Said corporation is authorized to raise money for an annual supply of water for fire and other municipal purposes, and for an annual rental of hydrants, in addition to the purposes now authorized, to be levied and assessed in the manner provided by its charter and by this act.

"Sec. 3. The existing contract of date of November twenty-seven, in the year of our Lord one thousand eight hundred and eightysix, between said corporation and the Dover and Foxcroft Water Company, is hereby ratified, confirmed and made valid; and said fire company is authorized to raise such sums of money from time to time, as may be necessary for the purposes thereof."

On July 3, 1891, the Maine Water Company, by a deed of that date from the Dover & Foxcroft Water Company, acquired "all the rights, privileges, immunities, franchises, and property" of the Dover & Foxcroft Water Company, subject to all the then existing contracts of this latter company, special reference being made to the contract under consideration in these words: "The said Maine Water Company hereby covenants and agrees that it will faithfully perform each and all of the obligations of all the contracts now existing between the Dover and Foxcroft Water Company and the Dover and Foxcroft Village Fire Company in each and every particular, and shall be subject to all

the liabilities of said contracts, as fully and completely as if said Maine Water Company was a party to said contract."

On September 7, 1901, the Dover & Foxcroft Village Fire Company appointed a committee to proceed under item eighteenth, herein before quoted, of this contract, with full power and authority to secure by agreement if possible, if not by appraisal, the valuation and amount of money necessary to purchase the water system, rights, property, privileges, and franchise located in the towns of Dover and Foxcroft, now owned by the Maine Water Company, in accordance with the provisions of the contract above referred to. And, prior to the commencement of this bill, this committee, in behalf of the village corporation, had petitioned the chief justice of this court, setting out the contract in question, the fact of the appointment of the committee for the purpose above named, and their authority, alleging that there was a disagreement between the village corporation and the Maine Water Company as to the price to be paid for the property, rights, and privileges of the water company, and praying for the appointment of three disinterested appraisers to determine such price in accordance with the provisions of the contract.

Upon this petition notice was ordered returnable on February 11, 1902. But, before that time, this bill in equity by certain taxpayers within the limits of the territory of the village fire company, against that corporation and its committee, was filed, praying for a preliminary and permanent injunction restraining the village corporation and its committee from taking further action in the matter, and an order was made upon the prayer contained in the bill for a preliminary injunction, returnable at the same time and place as was the order upon the petition for the appointment of appraisers. No decree was made upon the prayer for a preliminary injunction, but the hearing upon the petition for the appointment of appraisers was continued until the cause could be finally heard and a final decree made. The case has been reported to the law court for that purpose.

It is urged, in behalf of the complainants, that their prayer for a perpetual injunction should be granted because they contend that the contract between the village fire company and the predecessor of the Maine Water Company was ultra vires; that the acts of the legislature above referred to, and relied upon by the respondent as ratifying this contract, were insufficient for that purpose, at least so far as the provision relating to the purchase of the property is concerned; that it was not the intention of the legislature to ratify that clause, and to give the village corporation the power to purchase the property of the water company; that even if such intention could be gathered from the language of the legislation, and if the act was sufficient in terms, it was in violation of

that provision of the state constitution which requires equal taxation.

Whatever may have been the extent of the powers granted to the village corporation, in its original charter, to raise money for the purchase and maintenance of apparatus for the extinguishment of fire, in organizing and maintaining an efficient fire department, and "for the procuring of water," there can be no question as to the proposition that, prior to the legislation of 1887, this corporation had no power to enter into a contract for the purchase of a system of water works such as the water company contemplated building, intended to supply water, not only for protection against fire, but also for other municipal purposes, and for domestic uses. The municipal purposes for which this corporation was created were limited to those named in the section already quoted. Such a public corporation certainly has no power, until invested with it by legislative action, to acquire by purchase, or to construct, a general water-works system built and designed to supply water for all municipal and domestic uses. This contract, therefore, when originally entered into was undoubtedly ultra vires.

But it is equally beyond all question that the legislature may grant to any municipal corporation, whether its municipal powers and purposes be general or limited, the power to construct, or to purchase and to own, and maintain, a system of water works either for the exclusive purpose of furnishing water for municipal purposes, or for that and, in addition, to furnish water for the use by its inhabitants for domestic and sanitary purposes. The instances of such grants of power by the legislature which have been upheld by the courts, or which have never been questioned, are too numerous to require the citation of authorities.

So that, upon this branch of the case, the only question is as to the effect and meaning of the legislative acts of 1887 already quoted. It seems to us that the language of the sections before quoted of chapter 260, Sp. Laws 1887, does not admit of any doubt that it was the plain intention of the legislature, in the enactment of this chapter, to give plenary authority, by way of ratification, to the village corporation to make this contract, including the important clause relating to the purchase of the property. We must assume that the legislature, when it passed this act, the main purpose of which was to ratify this contract, had knowledge of what the contract was, and of this particular clause in question.

In the first section, reference is made to the meeting of the inhabitants of the corporation in Mayo's Hall on November 18, 1886, and to the adjourned meeting on November 27th. All of the proceedings, doings, and acts of this meeting, and of the adjourned meeting, were ratified, confirmed, and made valid. These were the meetings, as 53 A.-5

we have already seen, when the proposition of the water company in the form of a draft of the contract was discussed and accepted, and the draft spread upon the records of the corporation.

By the second section, the corporation is authorized to raise money for an annual supply of water for fire and other municipal purposes, and for an annual rental of hydrants, in addition to the purposes previously authorized. By the third section, this contract, definitely referred to, is ratified, confirmed, and made valid; "and said fire company is authorized to raise such sums of money from time to time, as may be necessary for the purposes thereof." What purposes? Certainly not for an annual supply of water for protection against fire and other municipal purposes, nor for an annual rental of hydrants, because authority is granted to raise money for these purposes in the section immediately preceding. The contract referred to in this section does not call for the payment of money for any other purpose except for the purchase of the property. If this language was intended to have any meaning, and we certainly cannot assume that it was used without any purpose, it must have been intended, we think, to cover this very clause relative to the purchase of the property, and to authorize the village corporation to raise money for the purpose of paying for the property in case it exercised its option to purchase.

It is impossible for us to believe, from the language used, that the legislature intended to authorize and ratify all of the rest of this contract, and not to ratify the clause relative to the purchase of the property, which must have been inserted entirely for the benefit of the village corporation, since, while it gave the latter the option to purchase, it placed no obligation upon it to purchase.

Counsel suggest various respects in which it is claimed the legislation referred to was inadequate to give the village corporation the necessary powers to purchase and subsequently maintain this water-works system, and, therefore, argue that it was not the intention of the legislature to confirm and ratify that particular portion of the contract, or to grant such power. For instance, it is said that the charter of the water company give it the right to have a capital stock of $100,000, which as a matter of fact was fully issued by that company, and that no corresponding right was given to the village corporation in its amended charter. But while a capital stock is necessary for a private business corporation, and represents the amount paid in, or promised to be paid in, by the members of the corporation, with which to do business, it is entirely unnecessary, and would be most inappropriate, for a municipal corporation to enable it to construct or to purchase property for public purposes. A municipal corporation no more needs a capital stock in order to own a system of water

works than does a quasi municipal corporation, such as a county, to enable it to build a courthouse.

It is said that the enabling act of the water company authorized it to hold real and personal property to the amount of $100,000, and that no such power was given to the village corporation. But legislative authority given to a municipal corporation to acquire by purchase property to the extent in value of $100,000 for a public purpose must carry with it by necessary implication the power to hold that amount of property after it has once been acquired. And generally, as applicable to many of these suggestions, it must be remembered that municipal corporations cannot only exercise such powers as are granted by their charters, or by general law, either expressly or by implication, but also such as are incidental to the powers expressly granted, and such as are essential to the objects and purposes of the corporation.

Again, it is said that this village corporation can only raise money by taxation, except the comparatively small sum of $2,000, which, by its original charter, it was authorized to borrow; and that, in order to pay for this property, it would be necessary to raise by taxation, at one time, a very large amount, said to equal 8 per cent. of the whole taxable property within its territory. While this may be perhaps a serious practical difficulty in carrying out the contemplated purchase of the property, we cannot see that it affects the legal question involved.

It is said that the water company's charter made it liable to the two towns for all sums recovered against either of them on account of any defect in the highways caused by the company's negligence, but that the act of 1887, amending the charter of the village corporation, contains no reference to any liability upon the part of it in the case of such purchase; and we are asked if the village corporation would be subjected to such a liability in case of the purchase of the property. The question does not arise in this case. We do not think that any argument can be drawn from the fact that the act is silent upon the subject. The question might well be left to be determined upon the general principles deducible from the nature of the municipal ownership of such property.

It seems that the Dover & Foxcroft Water Company, during its ownership of the property, mortgaged it to secure bonds of which $60,000 in amount are now outstanding, and we are asked by counsel if the village corporation, in case the purchase of the property is effected, an or must assume these bonds, and, if not, if the rights of these bondholders will not be impaired by such purchase. We think it is a sufficient answer to this suggestion to call attention to the fact that this contract providing for the purchase was executed prior to the time that the mortgage was made, and was ratified

by the very act of the legislature (chapter 31, Sp. Laws 1887) which authorized the water company to issue bonds and secure them by a mortgage upon its property and franchise, so that the holders of these first mortgage bonds took them subject to the then existing contract.

No point is made because the legislative authority in this case was given after the execution of this contract by way of a ratification of that contract. The sufficiency of such legislation in this state under circumstances similar to those involved in this case has been frequently upheld. The following quotation from the opinion of the court in Shurtleff v. Inhabitants of Wiscasset, 74 Me. 130, is particularly applicable to the facts of this case:

"The legislative act is after all only a grant of authority nunc pro tunc, a permission to the town to enter into the contract if they do not choose to reconsider their former action, and none the less valid because it was known to the legislature what the contract proposed was." The village corporation never reconsidered its action in making this contract. but, upon the contrary, both parties to it, and the successor of the water company, have always treated it as a valid and existing contract until this question arose.

It is further argued, in behalf of the complainants, that, even if this act of the legislature of 1887 was broad enough to give the village corporation the power to acquire by purchase this property of the Maine Water Company under the contract with the latter's predecessor, this legislation is in violation of article 9, § 8, of our constitution, as follows: "All taxes upon real and personal estate, assessed by authority of the state, shall be apportioned and assessed equally according to the just value thereof."

As we have already seen, a portion of each of the towns of Dover and Foxcroft is not included within the limits of the territory of the village corporation. By the Dover & Foxcroft Water Company's enabling act, that corporation was "empowered to supply the towns of Dover and Foxcroft, and inhabitants thereof, with pure water for domestic, sanitary and municipal purposes." At the time that these proceedings were instituted to have the value of the water company's property determined for the purpose of purchase, the water company was actually supplying water for domestic use to six takers, inhabitants of one or the other of these towns, who lived outside of the limits of the territory of the village corporation.

It is argued that, if the village corporation can purchase this property at all, it must do so subject to the same obligation as to furnishing water to takers outside of the village corporation as the water company is under now, in other words, that the village corporation, if it acquires by purchase all of the property of the water company, and all of its corporate rights and privileges, must do so