[7] However, the federal Supreme Court, | proprietary matter, as is also the fixing by which finally determines when contracts have been impaired, has adopted the view, which now appears to be generally accepted by the state courts, and which we feel constrained to follow, that the state may in its discretion vest in one of its municipalities the authority to enter into an inviolable contract for a reasonable period regulating the rates to be charged by a public utility for its service. That in this respect, at least, it may suspend its authority during the life of such contract to exercise this important governmental function, and that such a contract is protected against impairment by the state under section 10, art. 1, of the federal Constitution. Walla Walla v. Walla Walla Water Co., 172 U. S. 1, 19 Sup. Ct. 77, 43 L. Ed. 341; Los Angeles v. Los Angeles Water Co., 177 U. S. 558, 20 Sup. Ct. 736, 44 L. Ed. 886; Freeport v. Freeport City Water Co., 180 U. S. 587, 21 Sup. Ct. 493, 45 L. Ed. 679; Vicksburg v. Vicksburg Water Works Co., 206 U. S. 496, 508, 27 Sup. Ct. 762, 51 L. Ed. 1155; Home Tel. & Tel. Co. v. Los Angeles, supra; Milwaukee v. Wisconsin R. R. Com., 238 U. S. 174, 180, 35 Sup. Ct. 820, 59 L. Ed. 1254; Winfield v. Public Ser. Com. (Ind.) 118 N. E. 831, P. U. R. 1918B, 747; Benwood v. Public Service Com., 75 W. Va. 127, 83 S. E. 295, L. R. A. 1915C, 261.

This view is concisely stated in Milwaukee v. Wisconsin R. R. Com., supra, 238 U. S. 180, 35 Sup. Ct. 822, 59 L. Ed. 1254:

"The fixing of rates which may be charged by public service corporations, of the character here involved, is a legislative function of the state, and while the right to make contracts which shall prevent the state during a given period from exercising this important power has been recognized and approved by judicial decisions, it has been uniformly held in this court that the renunciation of a sovereign right

of this character must be evidenced by terms so clear and unequivocal as to permit of no doubt as to their proper construction."

[8] Franchise contracts, so called, and contracts for the supply of water or other utility to a municipality, in which the rates are fixed for the public service rendered are valid and binding between the parties. Detroit v. Detroit Citizen Ry., 184 U. S. 368, 22 Sup. Ct. 410, 46 L. Ed. 592; Cleveland v. Cleveland City Ry. Co., 194 U. S. 517, 24 Sup. Ct. 756, 48 L. Ed. 1102; Minneapolis v. Minneapolis St. Ry. Co., 215 U. S. 417, 30 Sup. Ct. 118, 54 L. Ed. 259. In the last-cited cases, however, and in the case of Columbus Ry. P. & Lt. Co. v. Columbus, 249 U. S. 399, 39 Sup. Ct. 349, 63 L. Ed. 669, P. U. R. 1919D, 239, referred to in the complainant's brief, the authority of the state to control under the police powers was not in question.

[9] The supplying of water to a municipal

contract the price at which it is to be supplied; but a distinction exists, we think, between fixing such price by mutual consent in a contract, and the summary control, under the police powers, of rates and charges for performing a public service. One is a proprietary matter, the other a governmental function. The right to make a contract concerning a proprietary matter constitutes no authority to perform a governmental function. Prices fixed by agreement, and rates and tolls determined by a fair return on the fair value of the property devoted to the public use, are based on different considerations. Woodburn v. Pub. Ser. Com., 82 Or. 114, 161 Pac. 391, L. R. A. 1917C, 98, Ann. Cas. 1917E, 996; Traverse City v. Mich. R. R. Com., 202 Mich. 575, 168 N. W. 481, P. U. R. 1918F, 752, 760, 761. To preclude the state from the exercise of this power, the surrender must be so clear and unequivocal as to permit of no doubt of the legislative intent. All doubts should be resolved in favor of the continuance of the power. General authority is not sufficient; special authority is required. Home Tel. & Tel. Co., v. Los Angeles, supra, 211 U. S. 273, 29 Sup. Ct. 50, 53 L. Ed. 176; Englewood v. So. Platte Ry. Co., 248 U. S. 294, 39 Sup. Ct. 100, 63 L. Ed. 253.

To apply these principles to the instant cases, we find no such clear and unmistakable surrender of this important function of government in the charter of either of the water companies, or in section 63, c. 4, R. S.

By its charter each company was authorized to contract with corporations, the inhabitants of said towns, and village corporations located therein for supplying water as contemplated by the act. contemplated by the act. Under section 63, c. 4, R. S., each town and the town of Searsport under the charter of the Searsport Water Company was authorized to enter into a

contract for the supply of water for public uses upon such terms and conditions as the parties may agree. The fixing or regulation of charges by contract is nowhere mentioned in either charter. Nothing, we think, can be implied except the proprietary right of determining by agreement the compensation to be received by the companies for the supply of water furnished.

[10, 11] These grants in such general terms of the right to contract should not be construed as a surrender of an important function of government. All doubts must be resolved in favor of the retention of this power in the state. Complainants contend that similar language in the case of Vicksburg v. Vicksburg Water Works Co., 206 U. S. 496, 27 Sup. Ct. 762, 51 L. Ed. 1155, was held to au thorize the city to enter into an inviolable contract as to rates. True, but in Freeport Water Co. v. Freeport City, 180 U. S. 587,

(108 A.)

Tel. & Tel. Co. v. Los Angeles, supra, much control of all public service corporations (or stronger language was construed against such a grant. The federal court followed the construction of the state courts in each case. The majority of the state courts will be found to construe such statutes strictly and in favor of the state. Such contracts may bind the parties, but as against the state they must be regarded as entered into in contemplation of the state's authority to regulate all rates for the public service. Such Such regulation does not constitute an impairment of contracts within the meaning of the Constitution. As said in Knox v. Lee, 12 Wall. 457, 550 (20 L. Ed. 287):

under section 50, or upon its own motion under section 48 of chapter 55. It is the rates at the time of the hearing that are adjudicated by the commission. If then found to be unjust and unreasonable, they are from that time unlawful.

[16] A utility cannot repudiate such a contract at will. Nor does the filing of new schedules under section 28 have the effect of changing the rates fixed by contract. To obtain a change in such rates, except, of course, by mutual consent, and with approval of the Utilities Commission, the utility should proceed under section 50 of chapter. 55, and first obtain a finding by the Utilities Commission that the rates and charges fixed in such contract are "unjust, unreasonable or insufficient," whereupon the commission may then substitute such rates as it shall deem to be just and reasonable in the premises.

these sections. State ex rel. v. Billings Gas Co., 55 Mont. 102, 112, 173 Pac. 799.

[20] If the Legislature had intended to exclude from the operation of this act all existing contracts over which the state had not already suspended its regulatory powers, we think it would have said so in express terms. Since there is nothing in the fact that rates have been mutually agreed upon in a contract, which renders them any less subject to regulation by the state than when arbitrarily determined by the utility itself, if any inference at all arises from the excepting of existing discriminatory contracts in section 34 we think it is that all other existing contracts are included within the general terms of the act. The main purpose of such legislation, viz., to secure adequate service to the public at just and reasonable rates, might, in a large measure, be defeated by the exemption from the operation of such laws of all rates fixed by contract entered into prior to their taking effect. No rates, however fixed, should, we think, be regarded as exempted from such general regulatory powers as are contained in chapter 55, unless excepted in express terms or by necessary implication.

[21] We therefore conclude from the general purpose of such legislation, and the broad and inclusive terms employed in chapter 55 in conferring powers upon the Utilities Commission, and in the light of the judicial construction of similar acts by other courts of last resort, that the Legislature intended to delegate to the Utilities Commission of this state as complete power over rates fixed by prior contracts that have been determined to be "unjust and unreasonable" as the state itself then possessed. Arlington v. Bd. of Public Survey v. Bay St. Ry., 224 Mass. 463, 469, 113 N. E. 273. We think no rule of statutory construction is violated in so construing this act. Black on Interpretation of

[17-19] Vested rights under existing contracts are therefore, in no way affected by the terms of the act itself, nor, as we view it, by its operation. All contracts relating to the public service are entered into in contemplation of the exercise of the right of the state's regulatory powers whenever the public interests may require. No vested rights can be gained by contract or otherwise as against the proper exercise of the police powers of the state. Nor does legislation vesting the police power in a subordinate body or commission create any new obligations or duties, or impose any new disabilities with reference to past transactions. City of New York v. Foster, 148 App. Div. 258, 133 N. Y. Supp. 152. The duty to serve the public in a reasonable manner cannot be avoided by a contract. Louisville & N. R. Co. v. Mottley, 219 U. S. 467, 485, 31 Sup. Ct. 265, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671; Hudson County W. Co. v. McCarter, 209 U. S. 349, 28 Sup. Ct. 529, 52 L. Ed. 828, 14 Ann. Cas. 560. Such duties and obligations as are required to be performed by chapter 55 in respect to serv-Laws, pp. 136, 137. As to whether rates in a ing the public at just and reasonable rates, or such disabilities as are therein imposed on public service companies in this respect, have always existed whenever the state saw fit to exercise its powers. Such legislation in this respect, therefore, may be properly considered as prospective and not retroactive in its operation.

It is also urged that the exception of contracts entered into prior to January 1, 1913, in section 34 of chapter 55, indicates that it was the intent of the Legislature that all existing contracts should remain unaffected by this act. But sections 33 and 34 are penal sections. It was to remove any doubt as to the guilt of those giving or receiving any undue preference or advantage under contracts already existing that it was provided that continued service under such contracts should not be construed as constitut

prior contract, that may be classed as discriminatory under sections 33 and 34, may upon any grounds be modified by the Utilities Commission after hearing, is not raised in these proceedings.

The cases of Interurban R. & T. Co. v. Public Utility Co., 98 Ohio St. 287, 120 N. E. 831, and Quinby v. Public Service Corp., 223 N. Y. 244, 119 N. E. 433, are cited by complainants as the most recent decisions by courts of high standing in support of their contention that authority over rates fixed by contracts will not be construed as vested in a regulatory commission unless clearly conferred in express terms. The New York Court of Appeals, however, has since differentiated the case of Quinby v. Pub. Ser. Corp., and held in People ex rel. v. N. Y. Pub. Ser. Com., 225 N. Y. 216, 121 N. E. 777, a case now being followed by the Public Service Commis

(108 A.)

erly determined. The rates fixed in the contracts between the towns of Searsport and Lincoln and the respondent companies, then, being or having become unjust and unreasonable, the question before this court under the exceptions is: Did the Public Utilities Commission have the power and authority to order reasonable and just rates substituted therefor. We think it had.

Entry must be: Exceptions overruled. Result to be certified by the clerk of this court to the clerk of the commission.

land Gas Corp., P. U. R. 1919E, 163), under] in the cases at bar as a finding of fact propsimilar language to that contained in chapter 55, that the power to regulate rates for gas fixed by prior contracts was vested by the New York statute in its Public Service Commission. Also, see Koehn v. Pub. Ser. Com., 107 Misc. Rep. 151, 176 N. Y. Supp. 147. We are confirmed in our views by the reasoning and conclusions in the following cases in addition to those already cited: Atlantic Coast El. R. Co. v. Bd. of Pub. Util. Com'rs, 92 N. J. Law, 168, 104 Atl. 218; O'Brien v. Bd. of P. U. Com., 92 N. J. Law, 44, 105 Atl. 132; Pawhuska v. Pawhuska Oil & Gas Co. (Okl.) 166 Pac. 1058, P. U. R. 1917F, 226; State ex rel. City of Sedalia v. Pub. Service Com., 275 Mo. 201, 204 S. W. 497; Leiper v. Balt. & Phila. R. R. Co., 262 Pa. 328, 105 Atl. 551; Milwaukee El. R. & Light Co. v. Railroad Com., 153 Wis. 592, 142 N. (Supreme Judicial Court of Maine. Dec. 12, W. 491, L. R. A. 1915F, 744, Ann. Cas. 1915A, 911; Dawson v. Dawson Telegraph Co., 137 Ga. 62, 72 S. E. 508; Traverse City v. Mich. 1. WATERS AND WATER COURSES 203(12)— Railroad Com., 202 Mich. 575, 168 N. W. 481; Salt Lake City et al. v. Utah Light & Traction Co. (Utah) 173 Pac. 556, P. U. R. 1918F, 377; Raymond Lumber Co. v. Raymond

Lt. & W. Co., 92 Wash. 330, 159 Pac. 133, L.
R. A. 1917C, 574; Sandpoint W. & L. Co. v.
Sandpoint, 31 Idaho, 498, 173 Pac. 972, L. R.
A. 1918F, 1106.

While conclusions in some of the above cases have been reached under constitutional provisions peculiar to its own state, the reasoning is not entirely inapplicable. On the other hand, the result reached by the Ohio and Virginia courts (Interurban Terminal & Ry. Co. v. Public Utilities [Ohio] supra; Virginia-Western P. Co. v. Com. ex rel. Clifton Forge [Va.] 99 S. E. 723, P. U. R. 1919E, 766), were determined, or at least the judgment of the court was influenced, by special provisions of their state Constitutions not found in our own Constitution.

(118 Me. 397)

In re ISLAND FALLS WATER CO.

1919.)

REVIEW OF DETERMINATION BY UTILITIES
COMMISSION FIXING RATES.

Judicial review in proceedings by the Public Utilities Commission to fix water rates goes only to questions of law.

2. CONSTITUTIONAL LAW 154(2)-DETERMINATION OF RATES BY UTILITIES COMMISSION AS IMPAIRING OBLIGATION OF CONTRACT.

A determination by the Public Utilities Commission fixing rates to be charged by a water company, at a figure higher than the rates agreed on by contract between the municipality and the public service corporation, held not to impair the obligation of the contract.

3. CONSTITUTIONAL LAW 298(3) - DETER-
MINATION BY PUBLIC UTILITIES COMMISSION
OF RATES AS DEPRIVATION OF DUE PROCESS
OF LAW.

Increase by the Public Utilities Commission of rates to be charged by the public service corporation furnishing water under contract held not to deprive individual applicants of the mu[22] The only question raised by the ex-nicipality supplied by the corporation or the ceptions is the authority of the Public Utili- municipality itself of property without due proties Commission to regulate or change the cess of law. rates for service by any public utility that 4. WATERS AND WATER COURSES 203(11)— have previously been fixed in a contract beDETERMINATION OF RATES BY UTILITIES tween such utility and a municipality or a COMMISSION AS EXERCISE OF POLICE POWER. private consumer, if such rates are or have A determination by the Public Utilities become unjust or unreasonable. The Utili- Commission of reasonable rates to be charged ties Commission, a body specially clothed with all the authority of the state for the performance of an important governmental function, having determined, after hearing, that the rates, tolls, or charges of any utility, whether fixed by contract or by the utility itself, are in fact unreasonable and unjust, we must assume, at least in the absence Proceedings to determine rates to be of exceptions to any rulings of law in connec- charged by the Island Falls Water Comtion with such findings, that it has so deter-pany. Rates were determined by the Public mined upon the considerations that affect Utilities Commission Commission after remonstrance, the public interest. Upon this point we and respondent excepts. Exceptions overmust treat the conclusions of the commission ruled.

by a public service corporation for water for private use and also for fire protection, which involved higher rates than provided by contract, held within the police power of the state.

Exceptions from Supreme Judicial Court, Aroostook County, at Law.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Argued before SPEAR, HANSON, DUNN, I owner, under Rev. St. c. 60, § 27, is liable only WILSON, and DEASY, JJ. for negligence in their erection or maintenance.

John E. Nelson, of Augusta, for Island 3. ELECTRICITY 13-LIABILITY OF OWNER Falls Water Co.

Seth T. Campbell, of Island Falls, and Bernard Archibald, of Houlton, for Town of Island Falls and other remonstrants.

OF HIGH-TENSION LINE.

Where injury results from use of property or appliances as a high-tension transmission line, the test is not whether the use caused the injury, but whether the use was a reasonable exercise of the property, having in view the rights of the public.

4. TRESPASS 1-NATURE OF LIABILITY.

For the doing of an act without right, a person may be adjudged guilty as a trespasser, but, if he had the right to do the act, the question of his liability depends on his negli

gence.

5. NEGLIGENCE 2-"ACTIONABLE NEGLI

GENCE."

DUNN, J. Notwithstanding remonstrance by citizens of Island Falls that such action would be unnecessary, unjust, and unlawful, and particularly that it would be violative of an existing contract entered into, in virtue of previous legislative permission, between that town and the Island Falls Water Company, a public service corporation doing business there, the Public Utilities Commission, under date of January 30, 1919, after hearing and investigation, fixed reasonable rates effective at a later date, and applying equally to all receiving a like service, to be charged by said company for supplying wa-ble Negligence.] ter for certain private uses. The commission also fixed and put into subsequent effect rates to be paid by the municipality to the company, for furnishing water for general fire protection. In both instances, the rates fixed by the commission superseded lower ones agreed to in the contract.

"Actionable negligence" arises from the neglect to perform a legal duty.

and Phrases, First and Second Series, Actiona[Ed. Note.-For other definitions, see Words

6. NEGLIGENCE 110-DECLARATIONS; SUF-
FICIENCY.

founded upon obligation of law unconnected
When a declaration in a negligence case is
with any contract between the parties, it is
sufficient to state very concisely the circum-
stances which give rise to defendant's particular
liability, but the pleader must state facts from
which the law will raise a duty.
7. NEGLIGENCE 110-DECLARATION; SUF-

Sufficiency of pleadings where the action is one based on negligence must be determined from the facts from which the legal duty is deduced.

8. PLEADING 48-SUFFICIENCY OF ALLEGA

TION OF FACTS.

[1-4] Judicial review, in cases of this kind, goes only to questions of law. Fixing of rates by the commission did not, impair the obligation of the contract. Nor did it FICIENCY. deprive individual inhabitants of Island Falls or the town itself of property without due process of law. It was a legitimate result of a valid exercise of the police power. More distinct language than that of the statute (P. & S. L. 1905, c. 22) invoked as sustaining the contract relied upon must be used before a public service is withdrawn from the regulatory power of the state. Englewood v. Denver & South Platte Ry. Co., 248 U. S. 294, 296, 39 Sup. Ct. 100, 63 L. Ed. 253: In re Guilford Water Co.'s Service Rates, 118 Me. 367, 108 Atl. 446; In re Lincoln Water Co., 118 Me. 382, 108 Atl. 452. The entry to be certified to the clerk of the Public Utilities Commission must be: Exceptions overruled.

(118 Me. 414)

CHICKERING v. LINCOLN COUNTY
POWER CO.

(Supreme Judicial Court of Maine. Dec. 27,

1919.)

1. PLEADING 214(2)-DEMURRER CONFESS

ES FACTS WELL PLEADED.

Reasonable certainty in the statement of essential facts is required to the end that defendant may be informed as to what he is called legal duty and neglect thereof should be alon to meet at the trial, and facts showing a leged.

9. NEGLIGENCE 23(1) - ATTRACTIVE NUI

SANCE THEORY.

The attractive nuisance theory does not prevail in Maine.

10. ELECTRICITY

14(1)—CARE IN TRANSMIS

SION OF HIGH CURRENT OF ELECTRICITY.

In the transmission of electricity, high regard must be had for the safety of the public, including children of tender years.

11. NEGLIGENCE *mm 85(2)
NEGLIGENCE OF CHILD.

CONTRIBUTORY

Children are bound only to exercise that degree of care which ordinarily prudent children of their age and intelligence are accustomed to use.

By interposing a general demurrer, defend-12. ELECTRICITY 19(2) - SUFFICIENCY OF ant confessed all facts well pleaded.

2. ELECTRICITY 13-LIABILITY OF OWNER OF HIGH-TENSION LINE.

Where the poles and wires of a high-tension line along a highway were legal structures, the

DECLARATION SEEKING RECOVERY FOR DEATH
OF CHILD COMING IN CONTACT WITH WIRES
ON TREE.

A declaration alleging that defendant maintained a high-tension transmission line along