This appeal presents two questions for determination: (1) Is the maintenance and operation by the defendant of electric light lines wholly outside of its cоrporate limits, for distribution of electric current to nonresident customers ultra vires; and, (2) does the complaint sufficiently allege acts of negligence on the рart of the defendant proximately causing the death of plaintiff’s intestate?
Notwithstanding the fact that no legal liability is imposed upon the defendant by reasоn of the negligent conduct of its officers and employees in committing an act or conducting a business that is wholly
ultra vires,
the complaint is not demurrable unless the
ultra vires
nature of the acts and conduct comрlained of clearly appear upon the face of the complaint.
Madry v. Scotland Neck,
A municipality is a creature of the Legislature and it can оnly exercise (1) the powers granted in express terms; (2) those necessarily or fairly implied in, or incident to, the powers expressly granted; and (3) those essentiаl to the accomplishment of the declared objects of the corporation — not simply convenient, but only those which are indispensable, to the accomplishment of the declared objects of the corporation.
Madry v. Scotland Neck, supra; Asheville v. Herbert,
The plaintiff alleges: “3. That at the time of the grievances hereinafter complained of, the defendant was engaged in the distribution of electricity for lighting and power purposes for The use and benefit *535 of said town, its citizens and customers,’ and that on or about Mаy 1, 1938, said defendant purchased additional light lines, poles, transformers, meters, and other electrical apparatus, fixtures, and equipment from Bessie A. Craig and her husband, Robert 0. Craig, which electric lines extended from the town of Dallas towards the town of Stanley; from the town of Dallas toward the village of High Shoals; from the town of Dallas toward the village of Hardin; and from the town of Dallas toward the town of Cherryville, North Carolina; and at the time and times hereinafter mentioned, the governing authorities of the town of Dallas caused to be operated on behalf and for the benefit of the town of Dallas, its electric light and power system, including the lines, equipment, and apparatus purchased from the said Bessie A. Craig and her husband, Robert 0. Craig, hereinbefore referred to.”
If the defendant in no event is authorized to maintain and operate electric lines located outside of its corporate limits for the distribution of electric current to customers residing outside of its corporate limits, the alleged acts of the defendant in so doing is ultra vires and no liability attaches to the town for injuries received аs a proximate result of the negligent maintenance and operation of such lines. If the defendant has the authority to maintain and operate an еlectric light system for “the use and benefit of said town, its citizens and customers,” then it does not appear upon the face of the complaint, and the рlaintiff’s allegations do not disclose, that the defendant was exceeding its authority. The question, then, to be determined on the plea of ultra vires is: May a municipality maintain and operate an electric light system for the distribution of electricity for lighting and power purposes for “the use and benefit of said town, its citizens and сustomers,” and, in so doing, acquire, maintain and operate additional light lines, poles, transformers and other necessary equipment located entirely outside of its corporate limits for the purpose of serving customers who are not residents of the defendant town?
The Legislature by chapter 136, Public Laws 1917, C. S., 2807, conferred upon the municipalities of the'State the power to own and maintain light and waterworks systems, to furnish water for fire and other purposes and light to the сity and its citizens. This act was amended in 1929 and the further power was conferred upon municipalities to furnish light “to any person, firm or corporation desiring the same outside the corporate limits, where the service is available.” Ch. 285, sec. 1, Public Laws 1929. The amendatory act of 1929, by sec. 2 thereof, as an amendment to C. S., 2808, further provided “that for service supplied outside the corporate limits of the city, the governing body, board or body having such waterworks or lighting system in charge, may fix a different rate from that charged within the corporate limits.”
*536 There can be no question as to the defendant’s right to purchase, or to generate and distributе, electricity for its own use and for the use of its inhabitants. It is equally clear that without legislative authority the defendant would not be permitted to extend its lines beyond thе corporate limits for the purpose of selling electricity to nonresidents of the city. It is likewise clear that the cited statutes authorize a municipаlity to furnish light, not only to its citizens, but “to any person, firm or corporation desiring the same outside the corporate limits where the service is available.”
The аct of 1917, as amended by the act of 1929, is a valid exercise of legislative authority. Holmes v. Fayetteville, supra. The wisdom of a policy which permits municipalities to engage in enterрrises which are private and competitive in nature is for the determination of the legislative branch of the Government. We only interpret the law as it is written.
It does not appear upon the face of the complaint from the allegations therein contained that the defendant is exceeding the authority thus conferred upon it. The demurrer cannot be sustained for the reason that the acts and conduct of the defendant, as set out in the complaint in pаragraph 3, are ultra vires.
This conclusion is not in conflict with the opinion in
Williamson v. High Point,
We have carefully examined the allegations of negligence contained in plaintiff’s complaint. We are convinced that negligence is sufficiently alleged. The defects the defendant seeks to point out therein are evi-dentiary matters to be developed by the testimony. As the case goes back for trial before a jury we refrain from any detailed discussion thereof.
The judgment below is
Affirmed.