45 So. 662 | Ala. | 1908
This is an action brought by the plaintiff to recover damages on account of personal injuries received for the alleged negligence of the defendant’s servant or agent having superintendence and control of an electric lighting plant owned and operated by the defendant. The complaint, as originally filed, contains six counts, to which demurrers interposed by the defendant were sustained. The first, second, and fourth counts were subsequently amended, and the complaint was further amended by the addition of a count designated as “A.” Demurrers were refiled to the complaint as amended, and were by the court sustained. The plaintiff declining to plead further, the judgment was render
While errors were separately assigned as to the ruling of the court on demurrers to each count as originally filed and as amended, these assignments are not separately insisted upon, and practically one question raised by the demurrers is argued by counsel for appellant and appellee. Tt may be that counts 1, 2, 3, 4, 5, and 6, are not altogether free from objection; but as their imperfections are not urged in argument, except upon the principal question involved in the case, to' which we will advert, later on, we desist from -further discussion. Count A, we think, is sufficient in its averments and slates a good cause of action, unless it be that the demurrer addressed to all the other counts, and which raises the question as'to whether the defendant, a municipal corporation, had the power and authority under its charter to operate an electric lighting plant, is well taken. It seems to be settled as authority, where a municipal com poration, acting Avithin its charter powers, maintains and operates an electric lighting plant, the corporation may be held for the negligence of its servants or agents as any other person. — Fisher v. Newbern, 140 N. C. 506, 53 S. E. 342. 5 L. R. A. (N. S.) 542, 111 Am. St. Rep. 857; Owensboro v. Knox, 116 Ky. 451, 76 S. W. 191; Emory v. Philadelphia, 208 Pa. 492, 57 Atl. 311; Herron v. Pittsburg, 204 Pa. 509, 54 Atl. 311, 93 Am. St. Rep. 798; Twist v. Rochester, 165 N. Y. 619, 59 N. E. 1131; Emporian v. Burns, 67 Kan. 523, 73 Pa. 94. See, also, note to Hebert v. Lake Charles Ice Co., 100 Am. St. Rep. 535.
The Altai question in this case is Avhether the town of North Birmingham had authority and power under its charter to own and operate an electric lighting plant.
The power to erect and operate, at its own expense, an electric lighting plant, costing thousands, perhaps hundreds of thousands, of dollars, necessarily involves the power to tax the people to pay for the outlay. Neither the number of the inhabitants, nor the land or property comprised within the boundary of the town, nor the limited taxing power embraced in section 2954, would lead to any such inference, but, on the contrary, would quite clearly repel' the inference. It cannot reasonably be said that the power is necessarily or fairly implied in or incident to the powers expressly granted; nor is it essential to the. declared objects and purposes of the corporation. It may be conceded that the lighting of the streets of the town is a very great convenience, and, furthermore, may have a tendency to the repression of a certain class of crimes; but it is not indispensable to this end. It is unlike the supply of pure and wholesome water, which is essential to the life of the citizen-; and hence in this respect the case is differentiated from those wherein it is decided that the supply of water to
It is insisted by counsel for appellant that the power in question is conferred by section 225 of the Constitution of 1901, and the act of the Legislture passed pursuant to the constitutional provision. Gen. Acts 1903, p. 59. We fail to see that any power is conferred either under the constitutional provision or the act. On the contrary, we construe them to be rather a limitation put on the power wherever it already existed under other legislation; if not a limitation, at least a restriction thrown around the exercise of the power. Section 225 of the Constitution of 1901 provides as follows: “No city, town, or other municipal corporation having a population of less than six thousand, except as hereafter provided, shall become indebted in an amount including present indebtedness, exceeding five per centum of the assessed value of the property therein, except for the construction of or purchase of water works, gas or electric lighting plants, or sewerage, or the improvement of streets, for which purposes an additional indebtedness not exceeding three per centum may be created; provided this limitation shall not affect any debt noAv authorized by Iuav to be created,” etc. That there is no grant of power to purchase or construct, a lighting plant contain
Our conclusion is that the defendant municipality had not the power under the general statute, which contained all of its charter powers, to engage in the operation of an electric lighting plant. It follows that the act complained of was ultra vires the corporation, and the resulting injury fixed upon it no liability. The judgment appealed from is affirmed.
Affirmed.