*1 TERM, 1898. O.] H. B. MAYO v. COMMISSIONERS OF TOWN OF WASHINGTON. 8th,

(Decided 1898). March Injunction Pleading —Admissions n —Practice n —Muni- — Expenses

cipal Corporations Necessary —Electric — Light Law. Plants— Constitutional Where, enjoin by City a an I. in an the erection electric action to light charge plant plant, complaint not that such is a does allegation necessary municipal expense, an to that efEect fact, and, even if it an admission of such should he answer is not considered, a an admission of conclusion of so he law would binding merely, fact, and on a would not be the Court. injunction, granting refusing an appeal 2. an On from order Court can review the facts. ground rehearing granted another, but refused on

3. Where a one binding precedent. a latter is as original as to the decision charter, express power, only has, by has a its no such Where town from the fact powers necessarily pertain to or arise that it is a only things municipal do those that are corporation can indis- government. pensable to its existence money corporation to borrow or loan its a credit 5. To enable necessary expenses, except there any purpose, for its must be required ratified, Assembly passed Consti- an Act of proposition people, tution, authorizing it to submit by majority and ratification by an submission followed actual qualified voters. light plant operation of 6. The erection “necessary meaning within the expense” is not streets of town (Clakk, J., VII, the State Constitution. dis- Art. of Section ) sents. only, powers having general cannot issue municipal corporation, A7. for lighting an electric for the erection bonds authority to submit to its legislative streets without majority by a of such ratification voters. and a qualified voters dissents.) J., (Clabk, Term, brought 1897,of Fall Beaufort action Civil enjoin of bonds the issue town Superior Court light plant, Washington an electric erection Washing- J., at Chambers Brown, before heard THE IN SUPREME Mayo v. Commissioners. *2 September refused 4, 1897. His Honor C.,N. ton, appealed. plaintiff injunction and counsel for plaintiff, No (appellant). Warren, for defendant. F. Chas.

Mr. corpora- municipal The defendant is J.: Eurches, containing population of inhabi- 5,000 about tion given general powers By was charter it tants. following corporations in the words: to incident such Washington of the town commissioners That the ‘ them) in ‘be and and their successorns office (naming body politic corporation hereby they and a created are and of the Commissioners of the the name title under by-laws Washington, power with full to make Town of with of the State or the Constitution not inconsistent with, to and be contracted States; contract the United impleaded, plead sued, that' to be to sue hereby with all invested and title; name rights necessary usually appertain- powers other ” corporations. Chapter 1846-’47, ing Laws Laws). (Private Section under this defendant has undertaken The buy, erect and an electric public purpose town of streets of the twenty Washington dollars, and a cost of thousand coupon to run more than therefor, not bonds issue greater thirty years at a rate to bear interest per per annum. than 6 cent plaintiff, payer of defendant a citizen and tax

The citizens and for himself and behalf of other town, payers, denies of the defendant create tax purposes proposed, and debt for the thus to this bonded payers tax burden the citizens and the town of Washington.

N. C.] TERM,

Mayo brought purpose This restraining action is perpetually enjoining creating the defendant from issuing Upon such debt and from said hear- bonds. ing injunction below the court refused to issue the prayed plaintiff appealed. for and the appeal argued orally was not in this But Court. signed agreement asking we find a of counsel that'it printed be heard on briefs, which it is stated that the plaintiff’s any counsel does not brief, wish to file regretted, appeal has not so. done This is to be as the important question involves the consideration of a most *3 of constitutional law. But the well brief of considered fairly, defendant’s counsel treats the case and contends question there involved, that is but one of law and that constitutionality proposed is, the of the indebtedness n depends upon ques- and issue of bonds. And that one necessary expenses tion fact—is it of one the the town? case,

The defendant contends that the as it is consti- question Court, in tuted this does as to not involve the lights whether defendant could furnish incandescent pay, and, its individual citizens for if this Court sustain the that below, should order of the Court question would remain still undecided. This seems to hedging, light a little know us like as we of no electric lights in sell State does not incandescent private parties; hardly and we believe that the can expense go erecting defendant would wish to this operating light plant in the town part Washington defraying without this means of expense operating defend- But as the «same. question, we ant contends that does not involve way. will treat it in that agree that there is

We with defendant’s counsel

IN THE SUPREME

Mayo v. Commissionees. involved, and that is but one of law bonds; and issue the of the defendant make the debt depends upon an electric whether and this the fact plant, costing twenty is one dollars, thousand necessary government? expenses town several cases is, defendant and cites contends that sustaining this contention. C., 75 N. The case of Tucker Raleigh, City lights prove purposes that electric

is cited for two —To necessary expense, of this are a the admission and that binding In our fact on the Court. defendant is opinion case, In that it sustains neither contention. money facts sued on was admitted were that the debt cleaning performed due out work, the streets, being facts wells, and the said these like. The Court law, that the debt was hold admitted, we, as matter of necessary expenses. consideration In the case under alleged by They dispute there is no facts. about plaintiff were defendant, as and admitted says in its Tucker the defendant And Raleigh. buy, show, answer establish that these facts that to light plant one of this electric *4 expenses government. conten defendant’s of its The not First, tion It is cannot reasons, be sustained for two necessary an ex it a admission of the defendant that by pense, alleged but an it is. It is that allegation plaintiff, necessary expense, and not be the that it ais ing alleged it an cannot be admission. plaintiff if debt,

But if that this had admitted necessary expense, an it would be created, wouldbe for a agreement conclusion, fact, a and not result, a a as to by admission. and the bound Court would not be injunction, application But, as this is an 1898. TERM, 0.] Mayo v. right review

Court has the below Court on the Jones v. 80 N. C., facts. Boyd,

Brodnax v. 64 N. C., 244 is cited Groom, sustaining defendant as his contention. But in our opinion subject litigation it The does not. in that enjoin case was to the collection of taxes levied a under special repair legislature bridges. act of the to build and dispnte There was no hut what the Act authorized the levy, only question and the involved was as to whether question it was not, constitutional or as the was not sub- people. a mitted to fact, vote of the that it This was people, not submitted to vote made the consti- question upon hinge question tutional as to whether building bridges repairing was one expenses county government, and the Court held only analogy it that was. This is the Broadnax Groom, bears the case under And consideration. building repairing bridges is so obvious that the public highways county part aof neces- sary public expense county, propose we do not to discuss this further.

Evans C., 154, 89 N. is also cited Commissioners, placed entirely the defendant. But it is on Broad nax v. Groom and decides no more than that case does. City

Mauldin C., 1, is cited Council, S. sustaining authority defendant as its create the debt and issue does, We bonds. do not think but that plaintiff. it sustains the contention There is no constitutional restriction as there is South Carolina in North and the in that Carolina, of the defendant depended powers charter, case its under and the opinion power. held Court that it had is made largely quotations Judge defining general Dillon, *5 powers. Judge Quoting Dillon, from these THE SUPREME IN COÚRT.

Mato Cosimissionehs. powers granted are defined as follows: “Those in ex- necessarily fairly implied, press or inci- ; words those powers expressly granted; those essential dent to objects purposes simply conven- the declared —not Any indispensable. fair reasonable doubt con- but ient, power by cerning is the existence resolved Courts corporation.It quite against certain objects power is not essential to the declared such corporation, purposes has of the heretofore by owning gas lighted contract, been without part quotation The first of this down to fixtures.” quoted . . was the South Carolina Court . . apart Judge down Dillon, and from there the com- there Carolina Court. As was no ment of South corporate power in of the restriction constitutional depended general corporate their Carolina; it South They power were not restricted to contract. as power In of the is. South Carolifia defendant of the to lend credit issue defendant town necessary expenses was restricted bonds corporation. express defendant, are no there

In the charter only powers powers. such It has neces- therefore sarily pertain from the fact that it is munici- or arise pal corporation, therefore under third and, falls says Judge definition, he which does Dillon’s division indispensable.” simply And but “convenient, not mean concerning “any doubt the existence fair reasonable against corporation.” the 'Courts is resolved by the defendant was to our attention case called This sustaining position. Mayor, Ga., 681, cited the defendant. Lott any expressly that it not decide states does case This very slight question. The case bears constitutional *6 TERM, 0.] Mayo Commissiokees. any

analogy if it has all. ours, That caseis where Way company of cross the town contracted with lights with a certain number of furnish electric at an price per agreed brought annum. The action was enjoin enforcement of contract, reason people. that it was not submitted to a vote of the any did held that this not involve Court constitutional that, question; if the contract awas reasonable one and kept paid, the annual rental was the constitutional might question very never arise. There is little discus- of the case the Court, sion and we do know what provisions Georgia the constitutional of are. But the question case no where that the shows of ex- pense presented was or considered the Court.

The case v. Broden, 130 Ind., City of Crawfordville sustaining also cited defendant as its conten we tion. But do not think it does. There are no con stitutional restrictions of Indiana, State as there power are in North Carolina. The of the defendant in depended entirely upon powers that case contained put upon ground in its charter and the case is not necessity, ground but of convenience may reasoning But it be observed that the benefit. Supreme places Court Indiana as to plants footing, waterworks electric on the same distinguished. we do not see how can bewell question a new This is far North Carolina so as the municipality of a establish and light submitting concerned, without people approval. for their But it not new in principle. many construing opinions We have Section I, many VII, Article of the Constitution. We alsohave opinions defining powers corporations. ought From these it that we able to seems to be arrive IN THE SUPREME Mayo COMMISSIONERS. governing this proper the law case. as to conclusion at a authorizing Legislature special is no Act There levy in Broadnax as there was Groom. tax, *7 any express power in charter contained the there Nor is to erect and the defendant’s So, do so. to bonds, create a debt and and to issue an electric powers general the defend- depends the vested municipal corporation. aas ant subject pro municipality the Every to in this State Constitution, 7, VII of the Article of Section visions powers charter, what it has under its matter not it does provision the of the Consti they conflict with are if municipal corpora they To enable are void. tution, any money purpose, loan its credit for to borrow to tion expenses necessary corporation, except of the passed Assembly ratified as an Act must be there authorizing the submit required the Constituton people. v. 119 Commissioners, Bank to the proposition N. v. C., C., 214; Commissioners Snuggs, N. by a and ratified then be submitted to must question the requires qualified thereof. It both voters majority proposition, ratifi authority the and the to submit qualified majority warrant of the voters to cation and the of the bonds. debt issue of the creation C., N. If the 563. Commissioners, Railroad why get it, it in' not this Constitutional want people way? ques- final brings us to the consideration of

This purchase light plant fano whether to tion Washington price $20,000, at the town light streets, ex- one necessary its simply government, us seems to pertaining penses cited defendant’s counsel show authorities not. isit 1898. TERM, 0.] Mayo v. Commissionees. have seen that establish electric

We plants substantially plants stand on and water works footing. (and If we this to be consider so we same why not) do we have at to see least one direct able which holds that it is not one of the decision government. City expenses aof Charlotte v. C., Shepard, 120 N. In the brief defendant’s this as obiter. But that is not so. It is treated was case argument of the case of Charlotte claimed necessary expenses Shepard, was that this one plaintiff corporation, power, and that the had the any Legislature act of the or submission of without people, to make this debt and to issue ground assigned And is the second of error bonds. *8 petition rehearing. plaintiff’s for a While a in the re- granted assignments hearing was as to the other of er- ground. denied as to this This decision it was was ror, by and a Court, a full bench unanimous and en- made precedent, weight, any same asa that other titled opinion this Court is entitled to. had before this we have no case Court as to

While the light plant by an electric power to erect a presented municipality, we find that it has been in other very point States, and decided the and considered is, that whether it is one case, in this of the involved corporate government. expenses necessary of the In Mass., Peabody, 129, 153 decided in Spaulding v. satisfactory very full and discussion of the find we Peabody proposed subject. There, the town of to erect plant $30,000, cost streets, purposes. The Court discussed both for other as- question, and held that pects defendant had expense erecting such to incur no purposes. purpose or for other streets THE IN SUPREME COURT. 14 Comjiissionebs.

Mayo r. and con delivered Chief Justice Field by opinion In the all the discussion in Judges. curred held “it has been say uniformly case Court no under to light and towns are obligation that cities them safe making streets for purpose their n convenient Salem, travel,” Sparhawk citing Mass., Allen, 258; Randall v. 30; Booth, Tyson Railroad, Mass., says 276. This further opinion has to tax corporation all “that the power or nec by express from the Legislature grant derived and where the has the Legislature essary implication” implied powers powers, grant “That to this exceptions construed.” .are strictly few, clock, as a town hay-scales, such being rule are reason of ancient reservoirs, etc. These obtain pumps, custom, extended.” The opinion are not fur 1‘that, if of Pea was contended the town that it ther states it could them by street maintain lamps, could erect body means, and that to furnish them by means any appropriate do means of was one proper electric plant of such as laid down Massachusetts Court The rule so.” ing amount of there is considerable anj where is “that au it must be under expended, legislative money to he it, we is, any unusually interpret large This thority.” And say the Court municipality. for that amount *9 that the erection of such works as said “it cannot be case, .... in this in any strict contemplated are Peabody in order to enable the town of necessary sense ” decides This case the very point streets. to light it is not a necessary our case turns —that which with to its streets electric a corporation expense the debt of necessary not incur and therefore lights, the bonds. and to issue $20,000, what between are line demarcation draw the To O.] TERM, Commissions!®. expenses are and what not to be borne necessary municipal corporation, would attended with diffi- culty . attempt It is not that we should to do attempt case, in this and we do not so to draw the line. things clearly power, There are some within the line of duty provide is the authorities to jails, for them—such court as houses and inas Vaughn public Commissioners, highways 117 N. C., public bridges, in Brodnax Groom, supra. clearly There are others outside the line of necessary expenses, appropriations such as to build rail- roads, operate factories, to cotton build and electric street municipality lines, These, etc. car would have no pledge faith and credit of a town or obtaining build, authority Leg- without first from the popular islature, and from the vote. light plants

The erection of electric and water works may plants not be so far outside line of things some mentioned. But we are of the opinion they decided are outside. power upon plea

The claim necessity must stop somewhere. The restrictions contained the Con- meaningless. they stitution were not intended to be If purpose, had not been for a would have been put opinion provision into the In Constitution. our wisely put of the Constitution was into that instrument pui’pose, judicially for a most beneficent and it must be sustained and enforced courts.

Suppose corporate power we hold it to be within the buy light plants pledging a .of long faith and town; credit of the how will it be until will be claimed that electric street cars are neces- progress business, and convenience of the sary grant ? town if we And, this claim of how necessity, *10 IN THE SUPREME grounds have we to ? What distin- we that will resist plea guish If we sustain the other ? one from the prevent is necessity cars, what there to for street growth, prosperity necessity to claim of same people town, which of a to there is convenience pledging the faith credit of the railroad, no Especially if so, ? we allow the a railroad to town build corporate of the authorities settle or admission claim necessity, as claimed that should question evei’yday, in of much heard towns It is in this case. do railway growth a street size, that in towns have rail- prosperity town; and, no place a railroad to this is a ‘that road, hear said ’ necessity. contended for the defendant this And it is subscription make a town should if that, such case so, propose to do when bonds, suits or should issue enjoin doing, brought to it from so if the town should be necessary expense, it is to be taken alleged it was that such car or street railroad is evidence as conclusive necessary expenses municipality, one of the by this claim or bound admission. If the Court every in the State would so, town soon have be running it, a line of electric street cars, railroads pledged faith and credit of the town. based the law. cannot This C., was cited Goldsboro, for de

Smith point. question The it is not fendant, but estab lights involved in lishing was not that case. o;ty only was the involved territory lately ty by in a added to the streets, c use boundary. gb. extending It was to e the protection to the and the same citizens of benefits same territory territory that the of the old citizens had. new be observed and must enforced. The Constitution *11 N. O.] FEBRUARY TIÍRM, 1898.

Mayo v. Commissionebs. judgment The There is error. the Court below is re- injunction prayed granted. for must versed

Error. dissenting: It J., would seem that these Clark, propositions are established settled in North Caro duty (1) lina: That the town commissioners light (Smith the town v. 350) Goldsboro, 121 N. C., and hence it follows that the cost of such is a necessary expense; (2) That it “for courts de expenditures of- termine what class fall within the defi necessary expenses municipal corpora nition of of a expenditure tion”, and that when falls within that authority “have class, the courts no to control the exer discretionary power cise of vested in the commis exercising sioners” either as to manner of that dis Vaughn cretion or the reasonable limit of cost. v. citing Commissioners, 117 N. C., 429, Brodnax v. 64 N. 244 and Groom, C., Satterthwaite v. Com missioners, 76 N. Evans C., 153; v. Commissioners, 154; Cromartie C., Commissioners, 87 N. C., 134; “necessary expenses” (3.) That for such the com prohibited are not 7, missioners Section Article VII creating approval major debt without the of a ity qualified Raleigh, voters. Tucker v. 75 N. C., Wilson C., Charlotte, 74 N. 267; Section authorizes Code, town commission- “lay municipal purposes alia, inter ers, taxes property, privileges persons, subjects all within which are limits, liable to taxation for State runty purposes,” recognizes and Section 3821 C municipal corporations may pur- contract debts for such payment. poses provides their August 2, 1897, the On commissioners of the town of 2 f 2-^-2 THE SÜPREME IN following “Whereas adopted order:

'Washington illuminating of Wash- the town present method entirely inadequate, lamps gasoline the use ton sufficiently properly the said and does great in- subjects and others to the citizens town, and in- danger risk, and also well as to convenience, tax-payers con- expense town, great volves *12 furnished; and sidering character the more population is now of the said town the whereas, increasing, rapidly and the and is thousand, than five lights to the proper detrimental and sufficient lack of advance- to its town, and an obstacle the of business progress; Board of Com- whereas, and the and ment Washington, a careful after of the town of missioners methods and examination of the different consideration opinion systems are of the town, of the and cheapest and method is effective best, that the most oper- light plant, purchased, and to be owned by corporate of the town of Wash- authorities ated ington, and the said Commissioners declare public necessity. Therefore be same £ ' n Resolved, light plant purchased That an electric be Washington by purpose illumi the town of nating operated erected, and established and town, said town, therein authorities of said (cid:127) purchase plant not erection of said cost exceeding twenty pay thousand dollars. That to light plant, purchase and erection said electric Washington the town bonds shall be issued advantage. best That the said bonds shall sold exceeding per per a rate of interest not centum bear six payable annually, semi-annually, may annum, purchasers. agreed with the That the said bonds shall denominations of five hundred and he thousand one. TERM, 1898. -19 0.]N. V. COMMISSIONERS. MAYQ dollars, period exceeding thirty and shall run for a years. That the said bonds shall be executed Mayor Washington countersigned of the town of hy the Clerk of the Board Commissioners, corporate seal thereto affixed.” payer

This was an action a tax the cre- to restrain ation of this debt and the issuance of the bonds.

Judge below, himself citizen of the town Wash- ington, acquainted in- with needs, refused junction, plaintiff appealed. and the specifically granting

There is no statute the de- purchase fendant an electric .'lightplant, proposition therefor, issue bonds and the purchase said and issue bonds has newer been qualified submitted to a vote of the of said electors town. provides:

The Constitution, VII, Article Section county, city, *13 “No municipal corporation, town, or other any pledge debt, shall contract faith, or loan its n credit,nor shall any by any tax or of be levied collected except the officers same, of the ex- the for penses by majority thereof, unless a vote of the of the qualified voters therein.”

‘ general ‘It undisputed is a proposition and lawof that a corporation possesses and can exercise following powers the granted and First, no others: those express necessarily fairly im- second, those words; or plied powers granted; expressly in or incident to the objects pur- third, those essential to the declared poses corporation simply convenient, in- but —not ” Ed.) dispensable. Corp., As (4th Dillon Mun. Sec. 89 proposition sub- the to never been contract this debt has qualified a mitted to vote of of the town the electors it, specific grant power to is of contract .and there no IN THE SUPREME Mayo i>.Ccoimissioneks. “necessary expense” question for arises, the meaning the Article .Constitution, of the town within question be decided. is the sole to This VII, Section power the town to manu- of The of the commissioners electricity, gas sell the same to the to cit- facture presented not in the and does arise case izens, is not adopted by the defend- The resolution facts. the present illuminating of “the method ant recites gasoline lamps Washington the use of town the of sufficiently entirely inadequate, and does subjects light properly the citizens town, the said danger great well as to inconvenience, others great expense to the tax- involves and also risk, considering payers of the character the town, of light further recites “after care- It furnished.” of the different meth- and examination ful consideration lighting systems the town, the commission- of ods opinion most that the effective and best, ers of plant purchased, cheapest an electric be method is operated authorities of the owned and Washington.” The defendants then resolved, of town purchased plant town “That an electric illuminating purpose Washington said presented power de- town” purchase light- to contract debt fendants buildings purpose jrablic strictly public purpose. the said town—a streets 7, Constitution reference VII, Section Article pledge to contract debt, of counties faith, *14 £‘necessary levy collect taxes or ex credit, loan frequently construed penses” been Court. has to be no distinction between counties seem would There applies Constitution as the section towns, be a difference as to what- There would alike. both N. O.] 1898. TERM, 21 Commissionehs. “necessary (cid:127)would expenses” be the dif due to each., purposes objects ferent for which the two classes of corporations are created.

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

Nothing comfort, con- can be more conducive safety dwellers cities and towns venience public well-lighted market halls and other streets, than prevent buildings, or detect vice or more effective duty it is the crime. If it be conceded that public buildings all, then town to its streets why provide illumination it can method of the best *15 THE IN SUPREME

22 Mayo v. Commissioners. light could the town with defendants If the afford. expenses- pay gasoline lamps the or with kerosene why they provide not' could better then taxes, its electricity? gas by It would light of be- use quality light merely in the furnished, a difference principle. Raleigh degree in In and not a difference City Raleigh, Light 75 N. C., 274,, v. The Co. Gas argument purchase that the without it was assumed city necessary public purposes gas was a ex city pay pense, was a bound debt con and that lighting alleys, as streets, far tracted therefor. “So corporation municipal places public a con statutory independently any we that, think cerned, power power, have authorities inherent provide them. If their so, unless discre express statutory some restriction, is controlled tion may, provide light discretion, that form of in their and the financial to the wants con which is best suited says, corporation. The further Court that, dition power possessing municipal authorities thus to- procure power to light furnish or elec streets, principal power tricity with as auxil- is carried Electricity, iliary.” Law Section Croswell’s citing v. Braden, Ind., 149; Maul Crawfordsville Way Lott Greenville, C., 33 S. 1; cross, din Ga., no can be doubt that

There places implied public is one of streets being pro- powers, properly inherent property and as the lives its inhabitants tect immorality. forcibly This is set forth check Municipal Corporations, Judge his work on Dillon important particular, however, “In most follows: by comparison with modem cities. Its suffers Rome N. O.] FEBRUARY TERM, 1898.

public places lighted. were not All business closedwith clay light. night The dangerous. streets at Prop- were erty attempt was insecure. public illumination No at was made. The idea does not seem to have occurred to them. Persons who ventured nights abroad on dark dimly lighted by were lanterns and torches . . . No more necessity forcible illustration of advantages lighting given can pictures than the drawn Macauley, Lanciani and great city of the state aof in night; buried they darkness show how clearly power provide essentially to for this is peculiarly pertaining municipal one regula- to rule and studies, tion. Nor are these and the facts that practical jurist. reveal, without They value to the large demonstrate that a and dense collection of human beings occupying peculiar a limited area have needs necessity themselves, which municipal create the or government regulation, local in this, turn, necessity corporate organization. body thus organized, acquires rights peculiar as has dirties, so it distinguished to itself as from the nation or at State (4th large.” supra Ed.) Dillon, Section 3a.

Upon paragraph Supreme Court of Indiana in Ind. p. (14 Braden, L. Crawfordsville says: 268) Judge R. A. “While Dillon’s remarks have special great of course reference the difference cities, respect greater in that between the and minor munici pal corporations degree ais difference in and not in together kind. Wherever villages, men herd towns or will cities, be found more or less of the lawless plants vicious; and crime and vice are which flourish lighting in the best darkness. far So the streets, alleys public places municipal corporation of a independently any statutory power, concerned, IN THE SUPREME

Mato power provide authorities have inherent fof them. If so, unless their discretion is con express statutory they may trolled some restriction, provide in their discretion that form of which is best suited to the wants financial condition of the corporation.” cTt is well settled that the discretion municipal corporations sphere within the of their powers subject judicial except is not cases control, where fraud is or where the or discretion shown, being grossly oppression abused to the citizen *17 Valparaiso (citing 1, v. 91 15 Am. & Gardner, Ind., Eng. 1040). why they good Enc. We can see no reason may authority, statutory provide not also, without necessary plant generate supply maintain the to electricity required. authority Possessing to do the lighting, power incidentally that with it carries procure further or furnish whatever is neces sary production light. dissemination only authority contrary cited which holds a doctrine Spaulding v. 129. We are Mass., 153 Inhabitants, recognize validity however unable to the reason ing in analogy that case. We are be unable to see City tween the authorized to because Boston, procure its engaging fishing in oil for streets, whale purpose gen that supposed and the the other cases, electricity. Electricity supply eration and not a commodity bought which markets can be transported place place like oil.” many purport opinion

To are same able Chambersburg, among others, Pa., 160 Linn v. them, (in “it is a 25 511, L. R. A. 217 which is said corporations should mistake to assume that improvements keep progress and with the abreast Light age”); v.Co. Jack- Jacksonville Electric N. C.] FEBRUARY TERM, 1898. Fla., Atty.

sonville, 30 L. R. A., 540; State ex rel. Toledo, Genl. v. 48 Ohio 11 L. 112, 729; St. R. A. Hequemburg 550; v. 49 Hun. Dunkirk, Smith Nash v. Negaunee

ville, 88 464; Tenn., Mitchell (Mich) 71 N. Rep. Publishing Mayor, W., 646; Co. Asso. v. The N. Y., 257. In some of these cases there was an Act of Legislature authorizing purchase or erection of plant, noteworthy the electric and the last as sustain- ing authorizing an Act to construct a rail- street expense, point road at its own but all them are in ” ‘ recognizing purposes ‘city purposes, these scope and within the of duties for which cities and incorporated. towns are

In this at last term it was said Court a unanimous page Court in 350, Smith Goldsboro, C., City provides 352, that “The its citizens electric lights duty water, is its to do .... the\ possession of defendant taken said has streets order may duty perform that it its citizens and furnish lights water and of said owners lots.” And at p. “having bottom of it is said that been taken *18 city the within the limits of of Goldsboro, they subject to all the and are burdens entitled to all city citizenship. Paying taxes, the benefits of greatest advantages two of the of have asked for the lights, city, preparing and the and this was water plaintiff. give for the interference of the them but warrant in law can without interference Such ” upon any principle equity. of This not sustained be simply recogni-. and is of the times is abreast decision incorpor and towns are not fact cities tion of the government, purposes pro primary of the ated for the property, since person and that 'could done tection of by of Peace and as the Constables, the the Justices IN THE.SUPREME expensive machinery country of without districts, municipalities government, in fact but purposes governmental as for much for business so security paving, lights, against fire, such needs, sewerage, like, which are the and the necessities water, population, which can be furnished more of a dense effectively by representatives cheaply municipality administer its common chosen interests, subjecting by each citizen unrestricted de- than private organizations cajDital. Lighting mands being necessities, whether the of those town shall one gas lights, gasoline, or electric and if kerosene, furnish procure lights it whether shall latter, either prices private by paying combinations of exorbitant procure capital, them about one or shall third the knowledge) city owning common (as is cost plants, are operating matters which must be left to legislature peo- local elected the discretion very municipality purposes, for these ple jurisdiction Mayor vested in the criminal small purely town ordinances is violation incidental. C., 64 N. Groom, v. Pearson, C. J., In Brodnax of local commissioners the discretion over ex said range of what are penditures within ex supervised not be penses, Court could without ” ‘ despotism ‘erecting of five men. The same is held in p. 74 N. C., 748, at bottom Charlotte, Wilson Satterthwaite Beaufort, reaffirmed 76 N. C., lighting might While electric not have been a by general necessity years ago, adop become has so necessity to-day, while would not be a for a tion, progressive to-day, poorer less even town, smaller, larger indispensable *19 a for may wealthier town be it population, increasing in and the local board of rapidly 0.] 2? TEEM, Commissionees. may passing upon be entrusted commissioners with that question; finding as their when, here, that electric necessity gainsaid lighting is a is not pleadings, in the cannot matter judg- this Court as a of law reverse the necessity. and hold that it below, ment is not a Shepard, In Charlotte v. 120 N. C., 411, there is a necessary (since dictum, a it was to the decision of ‘ case), furnishing people that ‘the water to the of a city expense in is not itself a in the sense that city system must own and of water wide works,” but there is a distinction between that and this two essentials at case least: there was no finding acquiesced the commissioners, the other party, necessity that as a of fact matter awas that city secondly, water should own works, city’s owning in that was to the reference case water purpose “furnishing for the works water to the people” present individuals, i. e. to whereas in the case establishing are the commissioners the electric city public buildings itself to its streets, compelled squares, ai-e to do. There is no (cid:127) fights furnishing people question as individuals, city plant city though purposes, if established for nothing which will furnishing know of forbid its we private comparatively water citizens. But works are corporation except pro used little against principally purpose fire, tection furnishing water to individuals at a moderate rate municipalites their own own waterworks, and it argued, may fight that water therefore, works, unlike necessity, ing, not a hence cannot be established incurring debt therefor is until sub people. mitted city ownership however, seem,

It would water *20 IN THE 28 SUPREME Mayo v. in the dis- lighting-plants matter is a vested well as Light water, city government. sew- cretion protection are paving sanitation, and fire erage and objects obtained and are chief to be necessities, Transportation municipal organization. not is necessa- ry, own and car lines can street but municipalities by legislative action. be conferred is unmistakable trend the world There over to- municipal ownership lighting, works, water wards extent) railways. Judge (to some and even Dillon street this, and intimates refers is commended policy. supra, Dillon, 2 sound wisdom Section Germany, 1. In note two 691, thirds of the cities own lighting plants, proportion and car their electric and the increasing. The same is true of the other countries great Europe, being of continental there increase Judge ownership since Dillon wrote. In Ireland, being 208 Britain towns, Great cities and every city any importance, five, in fact save own their plants only for their own but uses furnishing average price citizens, and the gas citizen, furnished profit with a too to the municipalities, per 61 country cents thousand. In this large gas plants. too, number of cities own their Our neighboring capital, Richmond, Va., which is one of them, gas plant has owned its since and furnishes gas per thousand, $1.00 large and shows a annual profit. large increasing A number of cities and (already 200) towns over in the United States own their lighting plants with the result that cost municipalities, reports, from .official is less than one average buying third lights cost in their cities private companies. country The number owning of cities in this their TERM, 0.]N. Commissionebs. half) (over one out of a

water works is total of having supply municipal ownership water steadily increasing. largest In the 50 cities in the *21 recently changed private ownership 19 have from Union, only municipal ownership, leaving 9 of the 50 which dependent supply private are for their water still beginning century, companies. only At the of this by supplied in the States were water towns United only them and one of owned its water works, works railways plant. In Britain one third Great of the street excluding London) by (two thirds owned the cities with the result of lower and rates better themselves, profit municipalities, well as a accommodations as which have been enabled to thus lower taxation. On Europe, city the continent of wherever a does not own railways, they city its street are under control, which especially requiring their a rates, fixes minimun rate most) charged (usually 1 cent or cents at to be working going to and classes a work, division profits city. with of among

New York is which cities own the ferries though present concept at it leases them out. Thus the municipality scarcely governmental except a all, of incidentally for the enforcement of its but ordinances, great agency supply people it is in truth a business prime population, with the necessities of a crowded paved light, sanitation, clean and well water, streets, protection against fire. inequality one of the most fruitful causes Indeed, wealthy condition and the creation of few enormous expense general public, at the men has been the by private ownership profits public great made light, furnishing transportation water and franchises of incorporated large into cities and men, bodies IN THE SUPREME Commissionjsks.

Mayo n - supra,' Judge Dillon, mothercountries towns. cites altogether, either furnished, which and water are municipalities. majority The inor of cases age to- general live is which we movement of operation ownership franchises wards the these through people themselves of towns cities for municipal corporations, one of agency of their purposes recognized town and and chief charters. immediately point far short us, however, before

n fully by the authorities above and is sustained that, public lighting to-wit, of streets cited, necessary expense, buildings squares procure commissioners, the town such *22 general implication powers, and reasonable their statutory popular express vote, enactment without just light plant, an have a to establish guard buy engine, house, a fire erect can build hospital public well. It would be or bore artesian corporation if the undertook of course otherwise factory enterprise or some other cotton recognized duty, scope within the of its universally held to be. town is