Village of Hardwick v. Town of Wolcott

I regret that the majority has seen fit to discuss the question of the property rights of municipal corporations, since it is wholly unnecessary to do so. I concur in what Mr. Justice Taylor says on that subject. But I cannot say that I am convinced beyonda reasonable doubt that the classification adopted in the statute here involved is without sufficient basis, and I therefore concur in the result.

ON MOTION FOR REARGUMENT.^* After the foregoing opinion was handed down, the plaintiff, on leave granted, filed a motion for reargument pending which final disposition of the case has been withheld.

The grounds of the motion are, in effect, these: (1) That the Court has overlooked the distinction between plaintiff's rights and duties when acting as a governmental agency and when acting in a private or proprietary capacity; (2) that the Court has applied to the plaintiff when it was acting in the latter capacity rules of law applicable only if it was acting in the former capacity; (3) that the Court has ignored its former decisions respecting the rights of municipal corporations when acting in a private or proprietary capacity under authority conferred by charter; (4) that in considering the question of classification, the Court has failed to give due weight to the fact that the plaintiff is furnishing the inhabitants of defendant town with electricity for private and public uses; and (5) that the Court has overlooked the distinction between a condition that might have been imposed "as part and parcel of the grant" and a condition subsequently imposed after plaintiff had accepted its charter and incurred great expense thereunder.

Subsequently, and without leave, the plaintiff amended its motion by adding the following ground: That in making use of the "equality" clause of the Fourteenth Amendment to the Federal Constitution as a measure by which to determine the scope of the proportional provision of the State Constitution, the Court misapprehended the true relation between the two fundamental laws.

This case has been twice argued in this Court, and on each occasion elaborate briefs were submitted by both parties. That counsel availed themselves of the opportunity thus afforded to fully present their views touching all phases of the case then deemed essential is evidenced by their briefs; and the Court has endeavored to examine each question presented with the degree of care commensurate with the conceded importance of the case. Nor are we satisfied from anything that has been called to our attention that we have failed to do so.

Respecting the first three grounds of the motion it is enough to say that the claimed distinction between the rights of a municipal corporation when acting as a governmental agency and when acting in a proprietary capacity was fully pointed out by the plaintiff on the last hearing, and was carefully considered and weighed by the majority in arriving at the conclusion reached by them.

The same is true concerning the subject-matter of the fourth ground of the motion.

The fifth ground of the motion relates to a matter which appeared in the opinion when read but which has since been omitted; therefore, there is no occasion to consider it.

The remaining question urged upon our attention is that presented by the amended motion, which was filed without leave. A question presented in this manner stands no better than though first raised in the brief, which we have held to be unavailing.Powell v. Merrill, 92 Vt. 124, 131, 103 A. 259. But if we treat this question as properly before us, it would not change the result. What is said in the opinion concerning the scope of the equality clause of the Federal Constitution and the proportional provision of the State Constitution was said advisedly, and we find nothing in the motion or in the exhaustive brief filed in support thereof to warrant a reargument on that point.

Motion denied. Let full entry order go down at once.

^* Opinion on motion for reargument filed April 27, 1925.