Mayo v. Commissioners of Washington

Clark, J.,

dissenting: It would seem that these propositions are established and settled in North Carolina: (1) That it is the duty of the town commissioners to light the town (Smith v. Goldsboro, 121 N. C., 350 ) and hence it follows that the cost of such lighting is a necessary expense; (2) That it is “for the courts to determine what class of- expenditures fall within the definition of necessary expenses of a municipal corporation”, and that when an expenditure falls within that class, the courts “have no authority to control the exercise of the discretionary power vested in the commissioners” either as to the manner of exercising that discretion or the reasonable limit of cost. Vaughn v. Commissioners, 117 N. C., 429 , citing Brodnax v. Groom, 64 N. C., 244 and Satterthwaite v. Commissioners, 76 N. C., 153 ; Evans v. Commissioners, 89 N. C., 154 ; Cromartie v. Commissioners, 87 N. C., 134 ; (3.) That for such “necessary expenses” the commissioners are not prohibited by Section 7, Article VII from creating a debt without the approval of a majority of the qualified voters. Tucker v. Raleigh, 75 N. C., 267 ; Wilson v. Charlotte, 74 N. C., 748 .

The Code, Section 3800, authorizes town commissioners, inter alia, to “lay taxes for municipal purposes on all persons, property, privileges and subjects within the corporate limits, which are liable to taxation for State and C runty purposes,” and Section 3821 recognizes that municipal corporations may contract debts for such purposes and provides for their payment.

On August 2, 1897, the commissioners of the town of *18 'Washington adopted the following order: “Whereas the present method of illuminating the town of Wash-ton by the use of gasoline lamps is entirely inadequate, and does not sufficiently and properly light the said town, and subjects the citizens and others to great inconvenience, as well as to danger and risk, and also involves great expense to the tax-payers of the town, considering the character of the light furnished; and whereas, the population of the said town is now more than five thousand, and is rapidly increasing, and the lack of proper and sufficient lights is detrimental to the business of the town, and an obstacle to its advancement and progress; and whereas, the Board of Commissioners of the town of Washington, after a careful consideration and examination of the different methods and systems of lighting the town, are of the opinion that the best, most effective and cheapest method is an electric light plant, to be purchased, owned and operated by the corporate authorities of the town of Washington, and the said Commissioners declare that the same is a public necessity. Therefore be it

£ '■Resolved, That an electric light plant be purchased by the town of Washington for the purpose of illuminating said town, and erected, established and operated therein by the corporate authorities of the said town, at a cost for the • purchase and erection of said plant not exceeding twenty thousand dollars. That to pay for the purchase and erection of the said electric light plant, bonds of the town of Washington shall be issued and sold to the best advantage. That the said bonds shall bear a rate of interest not exceeding six per centum per annum, payable annually, or semi-annually, as may be agreed with the purchasers. That the said bonds shall he in denominations of five hundred and one. thousand *19 dollars, and shall run for a period not exceeding thirty years. That the said bonds shall be executed by the Mayor of the town of Washington and countersigned hy the Clerk of the Board of Commissioners, and the corporate seal thereto affixed.”

This was an action by a tax payer to restrain the creation of this debt and the issuance of the bonds. The Judge below, himself a citizen of the town of Washington, and acquainted with its needs, refused the injunction, and the plaintiff appealed.

There is no statute specifically granting to the defendant the power to purchase and operate an electric .'light plant, and issue bonds therefor, and the proposition to purchase said plant and issue bonds has newer been submitted to a vote of the qualified electors of said town.

The Constitution, Article VII, Section 7, provides: “No county, city, town, or other municipal corporation, shall contract any debt, pledge its faith, or loan its ■credit, nor shall any tax be levied or collected by any of the officers of the same, except for the necessary expenses thereof, unless by a vote of the majority of the qualified voters therein.”

‘ ‘It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable. ” Dillon Mun. Corp., Sec. 89 (4th Ed.) As the proposition to contract this debt has never been submitted to a vote of the qualified electors of the town .and there is no specific grant of power to contract it, *20 the question arises, is it for a “necessary expense” of the town within the meaning of the .Constitution, Article VII, Section 7. This is the sole question to be decided. The power of the commissioners of the town to manufacture gas or electricity, to sell the same to the citizens, is not presented in the case and does not arise upon the facts. The resolution adopted by the defendant recites that “the present method of illuminating the town of Washington by the use of gasoline lamps is entirely inadequate, and does not sufficiently and properly light the said town, and subjects the citizens and others to great inconvenience, as well as to danger and risk, and also involves great expense to the taxpayers of the town, considering the character of the light furnished.” It further recites that “after a careful consideration and examination of the different methods and systems of lighting the town, the commissioners are of the opinion that the best, most effective and cheapest method is an electric plant to be purchased, owned and operated by the corporate authorities of the town of Washington.” The defendants then resolved, “That an electric light plant be purchased by the town of Washington for the purpose of illuminating the said town” The question presented is the power of the defendants to contract a debt to purchase an electric light-plant for the purpose of lighting jrablic buildings and streets of the said town — a strictly public purpose.

Article VII, Section 7, of the Constitution in reference to the power of counties to contract debt, pledge faith, loan credit, or levy and collect taxes for £ ‘necessary expenses” has been frequently construed by this Court. There would seem to be no distinction between counties and towns, as the section of the Constitution applies to both alike. There would be a difference as to what- *21 •would be “necessary expenses” of each., due to the different purposes and objects for which the two classes of corporations are created.

Repairing and building bridges are necessary expenses of a county. Brodnax v. Groom, 64 N. C., 244 ; Satterthwaite v. Commissioners of Beaufort County, 76 N. C., 153 ; Evans v. Commissioners, supra; McKethan v. Commissioners, 92 N. C., 243 . Building a court house is a necessary expense. Halcombe v. Commissioners, 89 N. C., 346 ; Vaughan v. Commissioners, 117 N. C., 429 . In Smith v. Newbern, 70 N. C., 34 , in the able opinion of Bynum, J., it is held, citing Milne v. Davidson, 5 La., 410 , that the city may without express statute erect public hospitals, and, citing Livingston v. Pippen, 31 Ala., 542 , and Rorie v. Cabot, 28 Ga., 50 , bore an artesian well. In McLin v. Newbern, 70 N. C., 12 , it is held that the town has inherent power, or by reasonable implication from its general power, to build a jail or guard house as a public necessity. In Wilson v. Charlotte, supra, Rodman, J., says “It would be difficult or impossible to draw a precise line between what are and what are not the necessary expenses of a city.” He likens it roughly to the inquiry as to what are the necessaries which may be charged against an infant, a question whose determination largely depends upon his means, condition in life and surroundings. While the analogy is not exact, it is sufficiently so.

Nothing can be more conducive to the comfort, convenience and safety of the dwellers in cities and towns than well-lighted streets, market halls and other public buildings, or more effective to prevent or detect vice and crime. If it be conceded that it is the duty of a city or town to light its streets and public buildings at all, then why not provide the best method of illumination it can *22 afford. If the defendants could light the town with kerosene lamps or with gasoline and pay the expenses-from its taxes, then why could they not' provide better light by the use of gas or electricity? It would be-merely a difference in the quality of the light furnished, a difference in degree and not in principle. In Raleigh Gas Light Co. v. The City of Raleigh, 75 N. C., 274 ,, it was assumed without argument that the purchase of gas for public purposes by the city was a necessary expense, and that the city was bound to pay a debt contracted therefor. “So far as lighting streets, alleys, and public places of a municipal corporation is concerned, we think that, independently of any statutory power, the municipal authorities have inherent power to provide for lighting them. If so, unless their discretion is controlled by some express statutory restriction, they may, in their discretion, provide that form of light which is best suited to the wants and the financial condition of the corporation. The Court further says, that, the municipal authorities thus possessing the power to-light the streets, the power to furnish or procure electricity is carried with the principal power as an auxil-iliary.” Croswell’s Law on Electricity, Section 190, citing Crawfordsville v. Braden, 130 Ind., 149 ; Mauldin v. Greenville, 33 S. C., 1; Lott v. Waycross, 84 Ga., 681 .

There can be no doubt that the power to light the streets and public places of a city is one of its implied and inherent powers, as being necessary to properly protect the lives and property of its inhabitants and as a check upon immorality. This is forcibly set forth by Judge Dillon in his work on Municipal Corporations, as follows: “In a most important particular, however, Rome suffers by comparison with modem cities. Its *23 public places were not lighted. All business closed with clay light. The streets at night were dangerous. Property was insecure. No attempt at public illumination was made. The idea does not seem to have occurred to them. Persons who ventured abroad on dark nights were dimly lighted by lanterns and torches . . . No more forcible illustration of the necessity and advantages of lighting a city can be given than the pictures drawn by Lanciani and Macauley, of the state of a great city buried in the darkness of night; and they show how clearly the power to provide for this is essentially and peculiarly one pertaining to municipal rule and regulation. Nor are these studies, and the facts that they reveal, without practical value to the jurist. They demonstrate that a large and dense collection of human beings occupying a limited area have needs peculiar to themselves, which create the necessity for municipal or local government and regulation, and this, in its turn, the necessity for corporate organization. The body thus organized, as it has dirties, so it acquires rights peculiar to itself as distinguished from the nation or State at large.” Dillon, supra (4th Ed.) Section 3a.

Upon this paragraph the Supreme Court of Indiana in Crawfordsville v. Braden, 130 Ind. at p. 157 (14 L. R. A. 268) says: “While Judge Dillon’s remarks have of course special reference to great cities, the difference in that respect between the greater and minor municipal corporations is a difference in degree and not in kind. Wherever men herd together in villages, towns or cities, will be found more or less of the lawless or vicious; and crime and vice are plants which flourish best in the darkness. So far as lighting the streets, alleys and public places of a municipal corporation is concerned, independently of any statutory power, the *24 municipal authorities have inherent power to provide fof lighting them. If so, unless their discretion is controlled by some express statutory restriction, they may in their discretion provide that form of light which is best suited to the wants and financial condition of the corporation.” cTt is well settled that the discretion of municipal corporations within the sphere of their powers is not subject to judicial control, except in cases where fraud is shown, or where the power or discretion is being grossly abused to the oppression of the citizen (citing Valparaiso v. Gardner, 91 Ind., 1 , 15 Am. & Eng. Enc. 1040). We can see no good reason why they may not also, without statutory authority, provide and maintain the necessary plant to generate and supply the electricity required. Possessing authority to do the lighting, that power carries with it incidentally the further power to procure or furnish whatever is necessary for the production and dissemination of the light. The only authority cited which holds a contrary doctrine is Spaulding v. Inhabitants, 153 Mass., 129 . We are however unable to recognize the validity of the reasoning in that case. We are unable to see the analogy between the City of Boston, because authorized to light its streets, engaging in whale fishing to procure oil for that purpose or the other supposed cases, and the generation and supply of electricity. Electricity is not a commodity which can be bought in the markets and transported from place to place like oil.”

To the same purport of this able opinion are many others, among them, Linn v. Chambersburg, 160 Pa., 511 , 25 L. R. A. 217 (in which it is said that “it is a mistake to assume that municipal corporations should not keep abreast with the progress and improvements of the age”); Jacksonville Electric Light Co. v. Jack *25 sonville, Fla., 30 L. R. A., 540; State ex rel. Atty. Genl. v. Toledo, 48 Ohio St. 112 , 11 L. R. A. 729; Hequemburg v. Dunkirk, 49 Hun. 550 ; Smith v. Nashville, 88 Tenn., 464 ; Mitchell v. Negaunee (Mich) 71 N. W., Rep. 646; Publishing Co. Asso. v. The Mayor, 152 N. Y., 257 . In some of these cases there was an Act of the Legislature authorizing the purchase or erection of the electric plant, and the last is noteworthy as sustaining an Act authorizing the city to construct a street railroad at its own expense, but all of them are in point as recognizing that these purposes are ‘ ‘city purposes, ” and within the scope of duties for which cities and towns are incorporated.

In this Court at last term it was said by a unanimous Court in Smith v. Goldsboro, 121 N. C., 350 , at page 352, that “The City provides for its citizens electric lights and water, as it is its duty to do .... \ the defendant has taken possession of said streets in order that it may perform its duty to its citizens and furnish water and lights to the owners of said lots.” And at bottom of p. 353, it is said that “having been taken within the corporate limits of the city of Goldsboro, they are subject to all the burdens and entitled to all the benefits of citizenship. Paying city taxes, they have asked for two of the greatest advantages of the city, water and lights, and this the city was preparing to give them but for the interference of the plaintiff. Such interference is without warrant in law and cannot be sustained upon any principle of equity. ” This decision is abreast of the times and is simply a recogni-. tion of the fact that cities and towns are not incorporated for the primary purposes of government, the protection of person and property, since that 'could be done by the Justices of the Peace and Constables, as in the *26 country districts, without the expensive machinery of municipal government, but municipalities are in fact not so much for governmental purposes as for business needs, such as paving, lights, security against fire, water, sewerage, and the like, which are the necessities of a dense population, and which can be furnished more cheaply and effectively by the representatives of the municipality chosen to administer its common interests, than by subjecting each citizen to the unrestricted demands of organizations of private cajDital. Lighting being one of those necessities, whether the town shall furnish kerosene, gasoline, gas or electric lights, and if either of the latter, whether it shall procure the lights by paying exorbitant prices to combinations of private capital, or shall procure them at about one third the cost (as is common knowledge) by the city owning and operating the plants, are matters which must be left to the discretion of the local legislature elected by the people of the municipality for these very purposes, for the small criminal jurisdiction vested in the Mayor as to the violation of town ordinances is purely incidental. In Brodnax v. Groom, 64 N. C., 244 , Pearson, C. J., said that the discretion of local commissioners over expenditures within the range of what are necessary expenses, could not be supervised by this Court without ‘ ‘erecting a despotism of five men. ” The same is held in Wilson v. Charlotte, 74 N. C., 748 , at bottom of p. 159 and reaffirmed in Satterthwaite v. Beaufort, 76 N. C., 153 . While electric lighting might not have been a necessity years ago, it has become so by general adoption, to-day, and while it would not be a necessity for a smaller, poorer and less progressive town, even to-day, it may be indispensable for a larger and wealthier town rapidly increasing in population, and the local board of *27 commissioners may be entrusted with passing upon that question; and when, as here, their finding that electric lighting is a necessity is not gainsaid in the pleadings, this Court cannot as a matter of law reverse the judgment below, and hold that it is not a necessity.

In Charlotte v. Shepard, 120 N. C., 411 , there is a a dictum, (since it was not necessary to the decision of the case), that ‘ ‘the furnishing water to the people of a city is not in itself a necessary expense in the sense that the city must own and operate a system of water works,” but there is a wide distinction between that case and this in two essentials at least: there was no finding of the commissioners, acquiesced in by the other party, that as a matter of fact it was a necessity that the city should own water works, and secondly, the reference in that case was to the city’s owning water works for the purpose of “furnishing water to the people” i. e. to individuals, whereas in the present case the commissioners are establishing the electric plant for the city itself to light its streets, public buildings and squares, as they ai-e compelled to do. There is no • question of furnishing fights to the people as individuals, though if the city plant is established for city purposes, we know of nothing which will forbid its furnishing private citizens. But water works are comparatively little used by the city as a corporation except for protection against fire, and it is principally for the purpose of furnishing water to individuals at a moderate rate that municipalites own their own waterworks, and it may be argued, therefore, that water works, unlike fighting, are not a necessity, and hence cannot be established until the question of incurring a debt therefor is submitted to the people.

It would seem, however, that city ownership of water *28 as well as lighting-plants is a matter vested in the discretion of the city government. Light and water, sewerage and sanitation, paving and fire protection are necessities, and are the chief objects to be obtained by municipal organization. Transportation is not necessary, but the right to own and operate street car lines can be conferred on municipalities by legislative action.

There is an unmistakable trend the world over towards municipal ownership of lighting, water works, and even (to some extent) street railways. Judge Dillon refers to this, and intimates that it is commended by wisdom and sound policy. 2 Dillon, supra, Section 691, note 1. In Germany, two thirds of the cities own their electric lighting and car plants, and the proportion is increasing. The same is true of the other countries of continental Europe, there being a great increase in municipal ownership since Judge Dillon wrote. In Great Britain and Ireland, 208 cities and towns, being in fact every city of any importance, save five, own their lighting plants not only for their own corporate uses but for furnishing light to citizens, and the average price of gas furnished to the citizen, with a profit too to the municipalities, is 61 cents per thousand. In this country too, a large number of cities own their gas plants. Our neighboring capital, Richmond, Va., which is one of them, has owned its gas plant since 1862, and furnishes gas at $1.00 per thousand, and shows a large annual profit. A large and increasing number of cities and towns (already over 200) in the United States own their electric lighting plants with the result that the cost to the municipalities, from .official reports, is less than one third of the average cost in cities buying their lights from private companies.

The number of cities in this country owning their *29 water works is 1690 (over one half) out of a total of 3196 having water supply and municipal ownership is steadily increasing. In the 50 largest cities in the Union, 19 have recently changed from private ownership to municipal ownership, leaving only 9 of the 50 which are still dependent for their water supply upon private companies. At the beginning of this century, only 17 towns in the United States were supplied by water works, and only one of them owned its water works plant. In Great Britain one third of the street railways (two thirds excluding London) are owned by the cities themselves, with the result of lower rates and better accommodations as well as a profit to the municipalities, which have thus been enabled to lower taxation. On the continent of Europe, wherever a city does not own its street railways, they are under city control, which fixes their rates, especially requiring a minimun rate (usually 1 cent or 2 cents at most) to be charged the working classes going to and from work, and a division of profits with the city.

New York is among the cities which own the ferries though at present it leases them out. Thus the concept of a municipality is scarcely governmental at all, except incidentally for the enforcement of its ordinances, but it is in truth a great business agency to supply its people with the prime necessities of a crowded population, light, water, sanitation, clean and well paved streets, and protection against fire.

Indeed, one of the most fruitful causes of inequality of condition and the creation of a few enormous wealthy men at the expense of the general public, has been the great profits made by private ownership of the public franchises of furnishing light, water and transportation to large bodies of men, incorporated into cities and *30 towns. Judge ■ Dillon, supra,' cites mother - countries in which light and water are furnished, either altogether, or in a majority of cases by the municipalities. The general movement of the age in which we live is towards the ownership and operation of these franchises by the people of towns and cities for themselves through the agency of their municipal corporations, as one of the recognized and chief purposes of town and city charters.

The point immediately before us, however, is far short ■of that, and is fully sustained by the authorities above cited, to-wit, that the lighting of streets and public squares and buildings is a necessary expense, and that to procure such lighting the town commissioners, by reasonable implication from their general powers, and without express statutory enactment or popular vote, have a right to establish an electric light plant, just as they can build a guard house, buy a fire engine, erect a public hospital or bore an artesian well. It would be otherwise of course if the corporation undertook to operate a cotton factory or some other enterprise not within the scope of its recognized duty, as lighting the town is universally held to be.