TOWN OF SHREWSBURY vs. GEORGE L. MUNRO, JR.

GRANT, J. This is an action on a count in quantum meruit brought by the plaintiff town to recover the costs incurred by its municipal light department in temporarily removing electric wires at the request of the defendant in order to make it possible for him to move a building through certain public ways of the town. The plaintiff had a finding in a District Court, whereupon the defendant removed the action to the Superior Court (G. L. c. 231, Section 104, as amended through St. 1965, c. 377), where it was submitted on a statement of agreed facts which we shall treat as a case stated. A judge of the latter court entered an order for judgment for the defendant, and the plaintiff appealed.

The only defence to the action which has been argued before us is that the plaintiff is barred from recovery because the provisions of G. L. c. 166, Section 39 (as amended by St. 1958, c. 130), [Note 1] impose a statutory duty on the plaintiff's municipal light department (and thus on the town itself) to remove electric wires at the town's expense. We hold that the provisions of that section do not apply to a city or town owning a municipal electric plant.

1. We first reach that result by the application of long familiar rules of statutory construction. It has been

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repeatedly held or considered that a word such as "company," which is employed no less than six different times in G. L. c. 166, Section 39, is not to be construed to include a municipality owning an electric plant in the absence of a clear expression of legislative intent that it shall be so construed. See Donohue v. Newburyport, 211 Mass. 561, 566-569 (1912); O'Donnell v. North Attleborough, 212 Mass. 243, 245-246 (1912); MacRae v. Selectmen of Concord, 296 Mass. 394, 396-397 (1937); Howard v. Chicopee, 299 Mass. 115, 121-122 (1937); Taunton v. Commissioner of Corps. & Taxn. 359 Mass. 188, 190-191 (1971). See also G. L. c. 164, Section 2.

It seems to us that such a rule of construction is required in the present case. The words "any such company" which appear near the outset of the first sentence of Section 39 refer to the immediately preceding provisions of G. L. c. 166, Section 38, [Note 2] where "any city or town engaged in the manufacture and sale of electricity for light, heat or power" is referred to disjunctively with and in contradistinction to "any street railway company . . . any electric railroad company . . . or any company . . . described in . . . [section] twenty-one." Section 38 does not use the word "company" when referring to a city or town which owns an electric plant, and we are not at liberty to assume that the Legislature intended that word to have different meanings in two successive sections of

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statutory provisions dealing with the same subject matter. Compare Insurance Rating Bd. v. Commissioner of Ins. 356 Mass. 184, 188-189 (1969).

We note also a serious anomaly which would result from construing the word "company" as used in Section 39 to include a municipal electric plant; if a municipal electric department wrongfully refused to remove wires, an inspector of wires or a board of selectmen could cause the wires to be removed and the city or town could then proceed against itself under the second sentence of that section to recover the expense of removal. We cannot believe any such result was intended, but such would appear to be a logical consequence of the construction contended for by the defendant in this case.

We conclude as matter of simple statutory construction that the provisions of G. L. c. 166, Section 39, as amended, do not apply to a municipally owned electric plant. 2. Support for that conclusion is found in the legislative history of the provisions now found in G. L. c. 166, Sections 38 and 39. The earliest version of what is now Section 38 appears to have been St. 1849, c. 93, Section 7, which, when read together with Section 1 of c. 93, applied only to telegraph companies. That Section 7 was carried in 1860, without significant change, into Gen. Sts. c. 64, Section 15. The earliest ancestor of G. L. c. 166, Section 39, is St. 1869, c. 141, Section 1, which likewise applied only to telegraph companies. That section authorized persons desiring to move buildings to disconnect wires themselves; it contained nothing comparable to what is now the second sentence of G. L. c. 166, Section 39. The 1869 statute was not made part of the General Statutes, despite its obvious interrelationship to Gen. Sts. c. 64, Section 15. It was not until the enactment of the Public Statutes in 1882 that the provisions of Gen. Sts. c. 64, Section 15, and of St. 1869, c. 141, Section 1, were juxtaposed as Pub. Sts. c. 109, Sections 16 and 17, respectively.

By St. 1883, c. 221, Section 1, "All provisions of law granting to persons and corporations authority to erect, lay and maintain . . . telegraph and telephone lines" were,

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with certain exceptions, made applicable "to lines for the transmission of electricity for the purpose of lighting." One of the exceptions was Pub. Sts. c. 109, Section 16, which has already been identified as a forerunner of G. L. c. 166, Section 38. [Note 3] What had been Pub. Sts. c. 109, Sections 16 and 17, were carried without material change into R. L. c. 122, Sections 27 and 28, respectively. Both those sections were, by virtue of R. L. c. 122, Section 1, made applicable to electric light and power companies as well as to telephone and telegraph companies. There is nothing in the legislative history of R. L. c. 122, Sections 27 and 28, to suggest that either section was intended to apply to any wires other than those owned by private companies or unincorporated owners. To the contrary, it was said in Vol. II of the Report of the Commissioners for Consolidating and Arranging the Public Statutes (1901), at p. 1160, that the sections ultimately enacted in 1902 as R. L. c. 122, Sections 25-30, "have been so drafted to include all companies which by amendments have been brought within Pub. Sts. c. 109 . . ." (emphasis supplied).

It is in St. 1908, c. 233 ("An Act to extend the provisions of . . . [R. L. c. 122, Section 27] to street railway companies, electric railroad companies and municipalities engaged in the manufacture and sale of electricity . . ."), that we find the first use of the phrase "any city or town engaged in the manufacture and sale of electricity" which is now found in G. L. c. 166, Section 38. No change was made in 1908 in the provisions of R. L. c. 122, Section 28. The latter section was amended by St. 1911, c. 509, Section 6,

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in respects not important for present purposes. [Note 4] The provisions of R. L. c. 122, Sections 27 and 28, each as so amended, were carried directly to G. L. c. 166, Sections 38 and 39, respectively. [Note 5]

The significance of the foregoing exposition lies in the fact that ever since the juxtaposition in the Public Statutes of 1882 of the predecessors of G. L. c. 166, Sections 38 and 39, the scope of the predecessors of Section 39 has been defined by and limited to "any such company." The fact that the quoted phrase has remained unchanged in the ensuing period of more than ninety years (during which other changes have been effected in both of what are now G. L. c. 166, Sections 38 and 39) is, we believe, persuasive evidence that what is now G. L. c. 166, Section 39, was never intended to be extended to apply to a municipally owned electric plant which is separately and expressly referred to as such in what is now G. L. c. 166, Section 38. Compare Massachusetts Mut. Life Ins. Co. v. Commissioner of Corps. & Taxn. 363 Mass. 685, 691-692 (1973).

3. Although it was not discussed in either of the briefs, we have considered the possibility that the provisions of G. L. c. 164, Sections 66 and 71, might have the effect of making the provisions of G. L. c. 166, Section 39, applicable to a municipal electric plant. Section 71 of G. L. c. 164 is not one of the sections expressly referred to in the second clause of Section 2 of that chapter. Compare Board of Gas & Elec. Light Commrs. of Middleborough v. Department of Pub. Util. 363 Mass. 433, 437-438 (1973). We have concluded from an examination of the legislative history of G. L. c. 164, Sections 2, 66, and 71, that Sections 66 and 71 have

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no bearing on the application or proper construction of G. L. c. 166, Section 39. [Note 6]

The order for judgment is reversed, and the case is to stand for further proceedings in the Superior Court not inconsistent with this opinion.

So ordered.