L.D. 1068 - "An Act to Revise the Van Buren Light and Power District Charter"

MAINE STATE LEGISLATURE The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib Reproduced from scanned originals with text recognition applied (searchable text may contain some errors and/or omissions) ... RIC.HARD S. COHEN ATTORNEY GENERAL AUGUSTA, MAINE 04333 Honorable Harry L. Vose· House of Representatives State House Aug~sta, Maine 04333 May 2~, 1979 SrnPHEN L. DIAMOND JOHN S. GLEASON JOHN M. R. PATERSON ROBERT J. STOLT DEPUTY ATTORNEYS GENERAL Re: L.D. 1068- "An Act TO' Revise the Van Buren Light and Power DistrJ.ct Charter.' Dear Representative Vose: This will respond to your letter of May 23, 1979 in which you raised certain questions concerning L.D. 1068- "An Act To Revise the Van Buren Light and Power District Charter." In parti- cular, you have inquired whether (1) the Legislature may expand the territorial jurisdiction of the District without the approval, through a referendum vote, of the inhabitants of the additional territory to be included in the District; and (2) assuming that the inhabitants of the District may be liable in the event the District defaults on its bonds or notes,l may the Legislature authorize the District to issue such bonds or notes without the approval, through a referendum vote, of the inhabitants of the District? After an examination of the rel·evant statutory and constitutional provisions, our answer to both of these questions is in the affirmative. Since you have indicated that time is of the essence, our response will be rather swnrnary in nature. Prior opinions of this Office, copies of which are enclosed,2 have indicated that the Legislature has broad authority to create, 1. Section 10 of L.D. 1068 authorizes the Van Buren Light and Power District "to issue its bonds or notes to such an amount as the Public Utilities Commission may authorize for the purpose of raising the amount required to accomplish the various purposes contemplated by this Act ••.• " 2. See Op.Atty.Gen., May 10, 1979; Op.Atty.Gen., February 20,_ 1979-. - Honorable Harry L. Vose House of Representatives May 25, 1979 Page two abolish or alter the boundaries of political subdivisions of the State. In keeping with those opinions, it would be our view· that the Legislature may change the territorial limits of a light and power district without voter approval by means of a referen- dum. Moreover, .we can find no constitutional authority requiring such approval. You have also inquired whether, assuming the inhabitants of the District are ·1iable in the event that the District defaults on its bonds or notes, 3 the Legislature may legally authorize the District to issue such bonds or notes without voter approval. 4 Our· review of the pertinent law disc.loses no statutory or constitutional impediment to the Legislature authorizing a light and power district to issue bonds or notes without approval of the inhabitants of the 3. Such liability, assuming it exists, is predicated on 30 M.R.S.A. §5053 (1978) which provides: "The personal property of the residents and the real estate within the boundaries of a munici- pality, village corporation or other quasi-municipal corporation may be taken to pay any debt due from the body corporate. The owner of property so taken may recover from the municipality or quasi-municipal corporation under Title 14, section 4953." 4. L.D. 1068 is not entirely clear regarding the role the in- habitants of the District are to play in connection with the issuance of bonds or notes by the Van Buren Light and Power District. While Section 10 of the Bill authorizes issuance of bonds or notes in an amount approved by the Public Utilities Commission, that section also provides that "[t)he bonds or notes may be of the date and denomination and payable at such times and places, and bear such rate of interest, as the inhabitants of the Van Buren Light and Power District may determine or authorize their trustees to determine, by vote passed at any legal meeting of the inhabitants called for the purpose and containing an article in the warrant for that purpose. The district is authorized to borrow money temporarily without vote of the district inhabi- tants in amounts which in the judgment of its board of trustees are necessary to accomplish the purpose of the district." Honorable Harry L. Vose House of Representatives May 25, 1979 Page three district through a referendum vote. I hope this infor-mation is helpful. Please feel free to call upon me if I can be of further assistance. RSC:sm cc: Senator Dana C. Devoe Representative Richards. Davies Attorney R.1CHARD S. Com~N ATTORNEY GENERAi. S'l'l\'1'1' ,.w M/\INII: DEP AR'l'MEN'!' Ol•' '!'HE A'!"l'ORNEY GENl!:RAL I\ UGUS'r/\, M/\IN& 04333 .May 10, 1979 The Honorable Jerome A. Emerson .Maine State Senate ·state House ·Augusta, Maine 04333 Dear Senator Emerson; S·n.;i>HcN L. D1AM0Nu JOHN S. GLEASON JOHN M. R. PATliRi:iON ROBERT J, STOLT DEPUTY ATTORNEYS GENERAL. This is in response to your letter dated April 30, 1979 requesting an opinion on several issues relating to the method of separating the Ogunquit Village Corporation from the Town of Wells. You have referred in your letter to four questions which I shall answer in the order you have presented them. As I understand your first quostion you ~~k whcLhcr the municipality of Wells can abolish by charter revision or amendment the Ogunquit Village Corporation pursuant to the Home Rule authorization, M.R.S.A. Const. Art. VIII pt. 2, Section land Title 30 M.R.S.A. Section 1911 et seq. By passing an Act to Incorporate the Ogunquit Village Corporation, Chapter 203 of the Private and Special Laws, 1913, the Legislature c~eated a corporate entity-separate from the Town of Wells. The Ogunquit Village Corporation charter describ~ the entity as "a body politic and corporate,". provides for the election of overseers to serve as municipal officers of the corporation and states the purposes for which the entity was created including fire and police protection; maintenance and const-.ruction of str~ets, sewers, sanitary works, and wharves; dedication and maintenance of public lands; and establishment of public water and lighting systems. '.L'he charter ~lso describo: the boundaries of Ogunquit Village Corporation. The Municipal Home Rule provision of the Constitution of senator Jerome A. Emerson May 10, 1979 · l?age 2 Maine, M.R.S.A. ·canst. Art. VIII, pt. 2, § l, states in part: The inhabitants of any municipality shall have the power to alter and amend.their charters on all matters, not prohibited by constitution or general law, which are local and municipal in character ••• This constitutional provision permits a municipality to amend its charter on matters "which are local and municipal in character". Generally, however, a change in municipal boundari is viewed as a political matter under legislative control. "As the exercise of the power [to change municipal boundaries] rel~ to matters extramural to the municipal corporation, which are c concern to the entire State, it is not a proper function of loc self-government, except insofar as delegated ~o the local corporation by constitutional or statutory provisions." McQui: Municipal Corpor~tion Jd Ed., Rov. Vol. 2, ch~p ,, § 7.10, p. 310. We find no constitutional or statutory authori~ation permitting a municipality in Maine to alter boundaries. In fa, as we noted in a prior opinion, a copy of which is attached for your information, the. Legislature alone has the authority to.expand or contract municipal boundaries. Municipal boundar cannot be changed by corporate acts of the inhabitants of a to We conclude that a municipality cannot abolish a separate poli subdivision for the same reason it cannot alter boundaries. consequently, it is our conclusion that the 'l'own of Wells cloe~ not have authority to abolish.Ogunquit Village corporation. Your second question refers to the procedure by which th( Ogunquit Village corporation may be separated from the Town o: Wells. As·::c interpret the question, you ask. whether the Home Rule Amendment to the constitution of Maine and tho implement statutes preclude the Maine Legislature from·separating the t municipalities by enacting LO 959 - An Act to Separate Ogunqu Village corporation from th~ Town of Wells. Although the Home Rule provisions of the constitution bestow upon municipalities full power of local self-9overnme1 senator Jerome A. Emerson May 10, 1979 Page 3 on matters of municipal concern, the provisions of the Maine constitution re.lating to the Legislature's authority to create municipal corporations and to change boundaries remains un- changed. M.R.S.A. Const. Art.· IV, pt. 3, § 14. This ~uthority" includes, but is not limited to, the right to create and incorporate political subdivisions of the State; to abolish· or dissolve .a corporation at any time, Kelley v. Brunswick school Dist., Me. 187 A 703 (1936); to alter municipal boundarie~ Ham v. Saw~er, 38 Me. 37 (1854); and to subdivide municipalities, .North Yarmouth v. Skillinqs, 45 Me .. 141 (1958). Although the Home Rule power was granted to municipalities, the Legislature's control to create corporations was not decreas, we see nothing in the provisions of the Constitution and statute to preclude the Legislature from enacting legislation, which if otherwise proper, separates Ogunquit Village Corporation from the Town of Wells. You also ask whether Section 7 of LD 959 - An Act to Separate Ogunquit Village Corporation from the Town of Wells unconstitutionally denies the inhabitants of Wells the right to vote in a referendum to determine whether Ogunquit Village corporation shall be separated from the ~own of Wells. Section 7 of LD 959 permits legal voters of Ogunquit Village Corporat.ioi:: to vote to decide "Shall Ogunquit Village corporation be separat from the Town of Wells as an incorporated Town of Ogung;uit?" I . . There are no provisions in the constitution of Maine which · require the Legislature to seek consent or acceptance of the inhabitants of a municipality prior to dividing, incorporating or abolishing that municipality. In fact, the law in Maine ha~ long been that the Legislature may incorporate a municipality withqut the consent of the inhabitants. Gorham v. Springfield, 21 Me., 58 (1842). :en r-runter v. Pittsburgh, 207 u.s. 161 (1907) the United States supreme court summarized the case law on the authority of state legislatures over municipalities as follows: Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the State as.may be entrusted to them ••• The numbe~, Senator Jerome A. Emerson May 10, 1979 Page 4 nature and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the State~-· The state, therefore, at;. its pleasure may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their'protest. In all these respects the State is supreme, and its legislative body, conforming its action to the state constitution, may do as it will, unrestrained by any provision of the Constitution of the United states. Although the inhabitants and property owners may by such.changes suffer inconvenience, and their property may be lessened in value by the burden of increased taxation, or for any o~her reason, they have no right by contract or othe.rwise in the unaltered or continued existence of the corporation or its powers, and there is nothing in the Federal constitution which protects them from these injurious consequences. The power is in the state and those who legislate for the State are alone responsible.for any unjust or oppressive exercise of it. 207 u.s. at 178 and 179 In view of the absolute power of the State over municipal corporations, the only apparent constitutional issues raised by section 7 of LD 959 are the permissibility of the delegatic if any, of legislative authority and whether voters of tl~e To~ senator Jerome A. Emerson May 10, 1979 Page. 5 of Wells are being denied equal prot.oction of t.bu li-1.ws .. In deciding whether the statute seeking voter approval in this case is an impermissible delegation of legislative authority, we note that statutes submitting the determina- tion of changes in boundaries to the electorate .are generally considered constitutional. McQuillin, supra chap. 7, Section 7.12, p. 320. In addition, Article IV, pt. 3, Section 19 of the Maine constitution generally approves of referenda. It states in part that "[t]he Legislature may enact measure~ ex- .·pressly conditioned upon the people's ratification by a refer- endum vote." While the referendum procedure mentioned in this article appears to refer to a statewide referendum, it provides some constitutional authority for the proposition that the Legislature may enact legislation upon the condition that it receive approval from those voters who are residents of a particular local governmental unit. With regard to the equal protection issue, it is necessary to decide whether there is a reasonable basis for allowing only one group to vote. As we interpret LO 959, t.he Legi::;la·1.:.ure wil have decided that Ogunquit Village shall be separated from the Town of Wells ·and that Ogunquit Village corporation shall becom the Town of Ogunquit. Whet~er Ogunquit Village corporation want·s to assume the burdens of being a municipality is the only question remaining. The inhabitants of Ogunquit Village Corporation are the persons· with the greatest interest in this issue. ~n Peoele v. Kenned~, 101 N.E. 442 (N.Y. 1913), which decided the issue of whether it is an impermissible delegation of legislative authority to-permit residents of a new county to vote on whether to separate from the original county, the court noted the distinction between the two group:;; of voters: "and it was to the voters of this territory'most affected that the right was left to determine whether the a'ct should become operative. I am aware -that it, is urged in this connection that the people of the entire county of New York were interested in the question whether a part of that Senator Jerome A. Emerson May 10, 1979 Page 6 county should be detached and erected into a new county, and that therefore, if any submission was to be made, it should have been made to the voters of the entire original coun'l::.y, and this suggestion may as well be disposed of here as at any point. In my opinion there are two answers to it. The people in the ·l:;erritory from which the new county was to be created would have a more direct interest and responsibility in the matter than any one else. On them especially would rest the privileges, responsibilities, and burdens of the new county if it were created, and it strikes the mind at once that they if any one should have the right to say whether the proposed territory should be separated from the old county and turned into a new one. au·t. fur·t.hor •t'han t'his, i:C it be assumed that; the Legislature had ·the power to confer upon any body of people the right to vote on the question, it necessarily had the power and· discretion within certain limits to decide '.U,pon what b.ody of people it. would confer this' power, and its decision in this respect does not in my opinion make the law vulnerable." 101 N.E. at 445 and 446 Based on the preceding, we think that ~here is ample basis for concluding that Section 7 of LD 959 is constitutional. Finally·, you· ask whether the Ogunquit Village corporation is a municipality within the meaning of M.R.S.A. Const. Art. VI pt. 2, §land within the meaning of the Home Rule provisions o Title 30 M.R.S.A. § 1911 et seq. Xn Title 030 M.R.S.A. § 1901(6 municipality is defined to include "only cities and towns, but shall include plantations il). cl1apter 239 subchapters V and v:i: 11 • It seems apparent from this definition and from section 5401 et seq., which bestows upon village corporations some of the powers and duties of municipalities, that the Legislature int.e11 senator Jerome A. Emerson May 10, 1979 Page 7 to exclude village corporations from the definition of 111unici1::>~l ities. The powers and duties described in these sections of Title 30 dealing with village corporations do not include any home rule power under chapter 201-A of Title 30. By the terms of the statutory definition, Ogunquit Village corporation is not a municipality with the meaning of the Home Rule provisions. I hope this response to your letter is helpful. If you have £-urther questions, please feel free to call on me. (fr]uly ;Jurs, . ~ . 'C, A ~IV\ ., ~ . l\J:C. S. COHEN Attorney General RSC/sn cc: The Hon. J.P. Normand LaPlante cc : '.L'he I-Ion. Or land G. Mcl?her son cc: The Hon. John L. Tuttle, Jr. ... !~JCHAH.1'• ·,. t',;,.,:•::;:,.J AT-:';,P\ Nl:. V 1C,l:N(.;l',Al. . ' s·1·.vi•j:; ot MAn-.E e:::1T • . DEP.t\U.1'~1E~T Of' 'l.'HE A'.M'ORNEY GENERAL February 20, 1979 Honorable Darryl N .. Brown. House of Reprcsen·t,1tiv~s. State I-louse · .Augusta·, Maine 04333 Re; Opinion Request. Regard:Lng ·the Legalit:y of . P. & S.L.· 1978,· 'Chapter 94 and Proposed· Legislation to Repeal It. ,' Dear Represen-tat.ive Brown: This is in response ·to your opinion request o;f · li'ebruary 2, 19'/9. In 1.:n1rt.icular, you have raised three. quest.ions i.:.o which :r shall respond in ·t:he order you h~ve presen·ted th9rn. · Initially, vou have inquired abou-i::. ·the legality of Chap·L:.e;i:- 9 ,1 o~ the P:i:iv.ate. and Spocial Laws of 19 ·1 a.. Chc.,p·L:.e:c Si 4, whi9h is entitled, "An Act:. to Set Off. a Portion o:E Land from t.h,;-1 Town of. Wales ·and Annex the Sarne to the Town of sab'attus," provides as follows; "All that part o:E 'i:.he Town ·of Wales lying with·in · ·che following described lines and bound- aries; namely, . 'beginning at a point in the es tab- . lished boundary. line bet.ween the 'l'own of Sabbatu.s . and, the· Town o.f Wales, A.11.droscoggin County, Maine, which point:. is i11. t.he .sout.b.easte:c:Ly li1ic o;i; ·the-~ Old, Gardiner Road, so called; .thence, in a general northeasterly airection along the southGastc~ly line of the Old Gardiner Road.a distance of c:.t.pp:coxi~tely 708 f<:".:et ·to· a point; ·l:.h.encc, in ,~n <.;ic1st.erly direc·t.ion a.11.d parallel. wi'l:.h th~ ~4,;istir.g bol.1.nd.arv· line between 'the Town of Sil.batt.us and the 'l'own of Wales a distance pf·l,554 .. 2 fc.:-~·t. t.o a point; thence, at a 'right angle in a southerly ,1ii:ection a· dis'l:.ance of 450 feet. t.o ·1:.he o:d.stJ.ng l.>o~u1.dary line bet.ween the Town of Sabat:tu$ and the Town . of Wales is hei:eby set off from the 'rown 0£ \•i'ales · and anne~:ed to t.he Town of Sabbatus and sh.:'\ll form a part of the Town of Saoatt:us .. 11 (effective July 6, 1978) ' . ' • I' ". As you ho.ve pointed out, Chapt.er 94 was enac-ted ·wit:.hout having peen submitted to• the voters of either the 'l'own of Wales O:!:' Sabat. tus for approval. In view of the fact that Chapter 9 4 .. · did not receive voter approval, you have as~<.ed ·whethi:!r it was legally enac t:.ed • .. rt is well-establisheo. in this State that the Legislature alone.has the authority to alter the boundaries of towns. As ~arly as 1854,. the SuI?r.eme Judicial Court stated:· "'l'he boundaries of towns are created by . Acts of the. Legislature. · The· i:n.'1.abi·tants thereof· cannot by direct corporate· Aot.s chang~ these boundaries •••• . "The Legisla·ture has authority ·to .cl1.ange the boundaries of towns at pleasure.". Ham ~- Sawyer,· 38 Me. 37, 41 (1854). The State of Maine· is divided in·to "counties, d Ls·tric·ts, ··cowc.s, plantations.and unorganized territory," (l M.R.S.A. § 7) and it lies wi'l:.hin , the sole power of the L~gi•sJ at\.ire ·to deto;i;mine in wha·t manner ·the St.ate will be divided.!? Accordingly, it wa.s not necessary, as a precondition to its enactment,· that Chapter 94 of the J?ri.vat.e and Special· Luws of 1978 receive voter .;.i:oorov~l ' .... from the inhabitants. of the Towns of Wales or.Sabattus •. . . Attached ·to your,opinion request is a copy of proposed legislation which would repeal CharJter 94, J;">. & S.L. J.978. You have inquired whether it would be • permi•ssibl(;l to in-traduce the proposed legisl.ation with "an ~1r.endmont:. which. \'/Ould :c1;;.1qui;;o r.1. ;referendum·vote·by ~ach,of the two towns. 11 -----------------------------------·•-... 30 N.R.S.A. § 2002 (1978) .does provide for a procedure whereby a boundary disp\.\te bat\•1een towns i~ subr~\:i.t:ced to a three-member comuission ·appointed by the Sup1;.:rior Cou~t. However, the ~ole function of this com.'1lisl;.)ion is to determine pre-existing boundary lin~s, not to est.ablish new ones. See Inh.abitants of Pavet.te v. Inhabitants of Readfieicf, supra.· :··:-ii:.,:::, it. :i.s wit.h;~r1 "i;;.ho L1:! 1;d.slat1,.u:e' s pCMi;;:C to c-::-~-:~t~) st .. :-:, •chang~ b0~ndaries, there·would' ~ppea~ to b~ no l~g~l p=0hi~~- tion ~~ui~st legislative enactment of a ?articul~r bound~ry alter- atio~ ;;; 1~Lbjc.:c.:t. t.o th-p· app;:-oval of the voters in tha affect.cu g~OS:l·aphical arei;is. 2./ 'l'his · var"j procedure was employed by th~ Legis:~tur0 when it enacted Chapter 87 of the Private a~d S?~cial Lat.•1s o:: 1973, entitled, "An Act t.o Anne;,;. Town of Brunswick to Sa9,i.d,,hoc Coun:i::.y." I' ,heivo attached a copy of Chapter ·rs 7 f.o:c your informution. As you will observe, this logislutior, w~a desisned to remove the Town of Brunswick from Cumberland County . and annex :Lt to Sagadahoc County. However, Chapt:e:c 87 b~cal'i\;; effective 90 days after the Legislatur.e' s ad:iournment onl'l f:or the purpose of submitting it to the voters·of Brunswick for either·acceptance or rejection. Chapter 87 also provided·that if the voters of Brunswick upproved the Act, it would then be· submit.ted to the voters of Sagadahoc County who would be given an opportunity to either accept or reject it. Chapter 87 also provided that in the event that both t.he Town of Brunswick . .;.incl the County of Sagadahoc approved the Act., it would then become fina~ly effective. · . In view of the ·foreg·oing, we would conclud~ th,\t ·the pro- posed legislation may be irl'l:.roduced with a provi~ion that if tho measure is· enacted by the Legislature, it will th~n be subr11itted :to a referen.dum vote by bo·th of t.hc towns involved. l:'inaJ.ly, you have as~,ed "(i] f the encl.os'=!d J.egil:;;l,d:.ion wi·t;h a referendum amendment fails, is there any time fral.'ne that is rec.ruired before similar legi~lat.ion can be submitted?". 'l'his question is governed by Article IV, Pt. 3, § l of the Maine Constitution and Rule JG of the Joint Rules of the M~ine Legislature. Article IV, Pt. 3, § l provides, in relevant part · 2/ 11 ••• that the business of the second regular session of the Legisla·ture shall be liinited to budg·etary n\at:.ters; le,gislat:.ion in.the Governor's call; legislation of an emergency nature admitted by the Legislaturo; l~gisla:tion rcf·~rred to comn\ittees for st:tldy and report by the Legisl,1:ture in the first regular session; and legislation·presont~d to the Legislature by written.petition of 'the electors under ·the provisions of Article IV, ~art Thrid~ Section 18." Article IV, Pt. ·3, Sl9 of the Maine Constitution sanctions referenda in general. Section 19 provides, in r~l~vant p~~t, t:.hc;:1.t "[t] he LegisJ.a'\..".ure may enact :measuros (;!Xpr.essly condi- · tioned upon ·cha people's rat.ification by a refe:r:cndum vote. 11 'i'he referendum procedure mentioned in Aj_'"ticle IV, Pt. 3, 519 appears to refer to~ statewide referendum. N~verthcloss, Articll;) IV, Pt. 3, 519 pr,.:>vides some const .. i tutional au.thor;Lt:.y for ·t.he propo.sit:.ion that the Legislat:ure·muy enact legi~lc;.1.tion upon the condition that it receive approval from t~o~~ voto=o who are residents of ~ pal:.·ticular local govei:m::ont:. unit.. Accordi.:·•.gl.y, \:m.l.us::.i ~l piecG of le::gislation falls w.t.-t.hiC'. o:H'.: u:: th.a c.:.~l::::.~o:r:ios specifi~d in Article IV, Pc. 3, § 1, it ca:inot b~ intr-::>duced or considered by the Legislatu.ce during the .S8.::;o~ci rcgula~ session. I would also direct your attention to Rule 36 of the Joint Rules, which provides 11No measure which has beon introduced and finally rejected in any first regular session shall be·intro~uced at any second regular or any special session of the same Legislaturo except by vote of two-thirds_ of both houses. 11 As we huve indica.-1.:.ed in the past, the quest.ion. of wheth8X' c-..1.nd wh~n particular leg is lat ion r11ay be introduced are matter~ which ure . customarily resolved by the Legislature •. Attorney General RSC/ec