Judges: Nolan
Filed Date: 1/14/1992
Status: Precedential
Modified Date: 11/10/2024
This is the second time in which the parties have been before the court and the issue in this case is precisely the same issue which we decided in Southbridge v. Southbridge Water Supply Co., 371 Mass. 209 (1976) (Southbridge I), that is, the meaning of the term “actual cost,” as it is used in St. 1880, c. 73, § 7, the special act which chartered the Southbridge Water Supply Company (company).
We turn to the stipulation of facts filed by the parties for the factual background. The plaintiff, town of Southbridge (town), is a municipal corporation located in Worcester
In 1972, a town water supply committee was authorized at a special town meeting to negotiate for the purchase of the company pursuant to § 7 of the charter which is set forth in full in the margin.
As a result, the town filed a petition for declaratory judgment against the company in the Supreme Judicial Court for the county of Suffolk. A single justice transferred the matter to the Superior Court where a judge reported the case to the Appeals Court and we then granted a joint application for direct appellate review. The court responded by defining “actual cost” as used in § 7 as “original cost of plant, less accrued depreciation.” Southbridge I, supra at 216. The court adopted this meaning because such meaning has been “employed regularly by the Department of Public Utilities and approved by this court in determining the rate base of the company and of other regulated utilities in the Commonwealth for rate setting purposes.” Id.
The company argues that .we should change the definition of “actual cost” in the light of our decision in Oxford v. Oxford Water Co., 391 Mass. 581 (1984), which was decided eight years after Southbridge I, and which interpreted the term “actual cost” within the framework of the Oxford
We need not consider arguments of the parties in this case concerning the effect of Southbridge I on issue preclusion because this case in relationship to Southbridge I represents more than mere identity of parties and issues. For all practical purposes, it is the same case and we have not been persuaded to change the declaration which we made in South-bridge I, supra at 216, that “actual cost” within the meaning of § 7 of the charter means “original cost . . . less accrued depreciation.” Judgment is entered dismissing the complaint.
So ordered.
Section 7 of St. 1880, c. 73, provides as follows: “The town of South-bridge and any fire district that may be established, shall have the right at any time during the continuance of the charter hereby granted, to purchase the corporate property and all the rights and privileges of said company at the actual cost of the same, or if mutually agreed upon between said corporation and said town or any fire district which may be hereafter established in said town, at a less price; and said corporation is hereby authorized to make sale of the same to said town or such fire district; but such authority to purchase said franchise and property is granted to said town upon the condition that the same is assented to by said town by a two-thirds vote of the voters present and voting thereon at any annual meeting or at a legal meeting called to act on that subject” (emphasis supplied).