One ground assigned for the motion relates to the direction that the superior court grant an injunction. The position is taken that the precinct should not be enjoined from acquiring the plaintiff's property by eminent domain if payment is not postponed to the taking, and that therefore the proceedings for the public service commission to determine the value of the property should be allowed to go forward.
Such a course of action would be in conflict with the statutory order of procedure. It is the mandate of the statute (P. L., c. 44, s. 11) that "As soon as practicable, but not exceeding one hundred and twenty days after the final vote" to take the property, the "utility shall surrender, and the municipality shall take possession" thereof "and thereafter shall operate" it. And that upon the change of possession or as soon afterwards as practicable the utility shall transfer title to the property, the proceedings to determine the amount of compensation to "thereafter proceed to a conclusion."
It is plain that compliance with these requirements in conformity with the decision is impossible. In point of fact the time limits for taking possession and title have long since passed, but assuming this to be due to the pendency of the litigation, yet they must continue to be disregarded if the taking is to await the determination of value. Since by the decision payment may not be postponed to the taking, and since by the statute the taking, as to possession at least, must be *Page 529 within one hundred and twenty days after the vote, and since the amount of compensation is not determinable within such a period of time, it would come to nothing to proceed to have the value ascertained. The statute excluding cases where postponed payment is unsecured, it follows that further proceedings under the vote would be vexatious, unauthorized and null.
The precinct has not by any vote waived the time limits for taking possession and title. Nor may it waive them without the plaintiff's consent. The phrasing of the statute shows clearly that a municipality is not to be allowed to take its time in carrying out its vote to acquire when it acquires by eminent domain. The statute evidences a purpose that action in pursuance of the vote shall be prompt. The chance of change in the character of the operation of the utility and in its maintenance through delay is sought to be avoided. There is no provision for postponement of taking if value may not be determined within the time limits for taking. As to possession, the limits are definitely fixed for all cases, and with a definite reference to those where payment is postponed. To entitle the precinct to take further action in pursuance of the vote, it would be necessary to add to the statute a clause providing that in cases where payment may not be postponed to the taking of possession or title, the taking may await the payment. The statute may not be read as though it contained such a clause. To hold that it might would be attempted legislation, and not construction.
It is said in the argument in support of the motion that there is statutory authority for taking the plaintiff's property by some alternate procedure of condemnation. No reference to any has been specified and none is found.
The direction that an injunction be granted in the superior court requires one adopting the conclusions of the opinion. It does not call for the imposition of an order restraining the precinct from acquiring the plaintiff's property in ways and by methods duly authorized by legislation. It does demand that the plaintiff be given injunctive relief against any effort of the precinct to acquire its property by eminent domain while there is, as now, reasonable uncertainty of the precinct's credit and while, in the continuance of the uncertainty, legislation fails to provide for payment by the time of taking.
The result is that there is no occasion to consider the other ground of the motion. Any conclusion about it would be dictum.
Former order affirmed.
All concurred. *Page 530