65 S.E. 927 | N.C. | 1909
Lead Opinion
PLAINTIFF'S APPEAL.
This was a controversy without action. The pertinent facts, out of which this controversy arose, are as follows: The town of Henderson, a municipal corporation, granted, in 1892, to the assignors of plaintiff a franchise for forty years to supply water for fire purposes and other public uses, and to its inhabitants, at a fixed maximum rate of charges, and prescribed the standard of efficiency, granting to said assignors of *169 plaintiff the right to lay their pipes and mains under the streets and other public ways in the town, reserving the right to compel the plaintiff to extend its mains and pipes as the public interest demanded, and fixed the rental to be paid by the town for the use of the water for fire purposes at so much per hydrant, and containing a provision for the town to purchase, at stated intervals and at a price to be determined in a prescribed way. The particular section of the franchise-contract giving occasion to this controversy provides as follows:
"Sec. 9. Water shall be furnished free of charge to five (5) drinking fountains, with openings for man and beast; . . . also for churches, public schools, town offices, market houses for city use and all other town offices now in use or to be erected." (173)
The General Assembly, by chapter 91, Private Laws 1901, established the Henderson Township Graded School District and incorporated the defendant, giving to it the entire charge of the public schools and public school property in said district. This act was ratified, as required by it, on 6 May, 1901. The territory within the jurisdiction and control of the defendant embraced the town of Henderson and that part of the township lying beyond its corporate limits. Two frame public school buildings were erected by the defendant, under that act, in the corporate limits of the town and furnished with water by the plaintiff free of charge. Under the provisions of chapter 56, Private Laws 1905, an election was held in said township to authorize the issue of school bonds to the amount of $20,000. With the proceeds of the bonds the defendant has erected two large brick buildings in the corporate limits of the town and six buildings outside the town limits, and discontinued the use of the two frame buildings. Under section 6, chapter 820, Laws 1907, the public schools in the town have been declared public high schools, and it is competent, under said section, for the defendant and the County Board of Education of Vance to enter into an agreement to permit children and teachers of public schools of the county to enter certain grades in said schools. It would seem that some such agreement has been made and some children from beyond the corporate limits do attend the schools in the town. The public school census shows 3,084 children within school age in the township of Henderson, of whom about two-thirds live in the town. There has been no census of school children in the town. There is not now, nor ever has been, any provision of law for any school under the jurisdiction of the board of commissioners of the town of Henderson. The plaintiff has been furnishing the public schools in the town with water (no demand being made to furnish the schools outside the town), the schools being provided with lavatories, closets and drinking fountains, and by its meters ascertained that the and prescribed the standard of efficiency, grantiny [granting] to said assiynors [assignors] of *170 December, 1908, amounted, at its regular rate, to $693.40, and the water used at the public school for colored people from 1 September, 1908, to 31 December, 1908, amounted, at the same rate, to $49.37. The plaintiff presented bills to defendant for these amounts and demanded payment; the defendant refused to pay, and this action was begun.
His Honor rendered the following judgment: "Now, after consideration thereof, and of the argument of counsel, the court is of opinion that, under its contract with the town of Henderson, the plaintiff is (174) required to furnish water free for use of the public schools maintained in said town for pupils residing in the corporate limits of the town of Henderson, but not for use of pupils patronizing said school in the said town, but residing outside of the corporate limits of said town of Henderson; and it appearing from the case agreed that at this time about one-third of the pupils in the graded school district entitled to attend said schools reside outside of the town of Henderson, and that at this time about two-third of said pupils reside in the corporate limits of the town of Henderson, it is now by the court ordered and adjudged that the plaintiff recover of the defendant, the Board of Trustees of Henderson Graded School, and they are commanded to pay the same out of the revenues and income from taxation and other sources from which said schools are maintained, the sum of two hundred and forty-seven and 59-100 dollars ($247.59), with interest thereon from the first day of January, 1909, till paid, and the costs of this controversy, the same being amount in full due by defendant for use of water to 1 January, 1909. And it is further adjudged that the plaintiff recover of the defendant the further sum of one-third of the amount for water used by defendant in said schools, at the regular price or rate for which water is provided to others, from 1 January, 1909, to 1 June, 1909, and said defendant is commanded to pay the same out of the revenues and income from taxation and other sources from which said schools are maintained, as heretofore set out. And it is further ordered and adjudged that in the future use of said water, after the first of June, 1909, which plaintiff is required to furnish to defendant, shall pay therefore at the usual or such rates as may be agreed on for all pupils patronizing said schools who shall not be residents of the town of Henderson, in proportion as such number shall bear to the whole number of pupils attending such schools; such number to be ascertained by an actual count by defendant, but such count to be subject to revision by the judge of the Superior Court presiding at any term of the court held in Vance County, in case of disagreement with plaintiff."
From which judgment both plaintiff and defendant appealed. *171 After stating the facts: The plaintiff contended that it was not bound by the franchise-contract with the town of Henderson to furnish any water free of charge to the public schools under the control and management of the defendant, the Board of Trustees of the Henderson Graded Schools. It based its contention before us (175) upon the following grounds: (1) That the stipulation in the franchise-contract, to wit, "Water shall be furnished free of charge, etc.; also for churches, public schools," was invalid, because ultravires of the town of Henderson. (2) That those words can embrace only public schools established and maintained by the corporation, the town of Henderson, and do not include public schools within the corporate limits not so established and maintained; and the schools controlled by the defendant, a separate and distinct corporate body, are not within this meaning. (3) That the territorial area for educational purposes under the control of the defendant is much larger than the corporate limits of the town of Henderson, and that, although it is sought to compel it to furnish water free only to the public schools within the corporate limits of the town of Henderson, yet persons other than those children living within said corporate limits have a legal right to attend these schools in the corporate limits of the town, and do attend them.
By section 24, chapter 241, Private Laws 1889, the Board of Commissioners of Henderson are authorized, among other powers specified, "to provide water and lights for said town, and to contract for the same." The plaintiff does not seek to annual the entire contract with the town, but questions the validity of the stipulation for free water to the public schools. The determination of this question necessarily involves the validity of the contract and the extent of its obligatory force; for if the town was without power to make the contract and it was void, the entire contract would be a nullity; and if the whole falls, each stipulation must likewise fall. Contrary to the decisions of this Court in the earlier cases in which this question was considered, it is now established by the later decisions that the supplying of water and lights by a city or town is a necessary expense," and that this power, even in the absence of express grant, is a power necessarily and reasonably implied in its general grant of powers, and can be exercised by its governing authorities, unless expressly forbidden by the provisions of its charter. If the charter prescribes the particular mode in which the power can be exercised, that mode is exclusive and must be followed. Fawcett v. Mt. Airy,
But the plaintiff complains that the town of Henderson furnished the consideration which supports the contract, and that the town could not legally do this for the public schools and churches. How can the plaintiff complain of this? It was entirely competent for it to make this stipulation, unless by its performance it entirely disabled itself to perform its duties to the town. It is in receipt of the consideration from the town, in the enjoyment of the benefits of the contract supported by it. The plaintiff is not the proper party to complain, (178) *174
in the absence of proof that it has thereby disabled itself to perform its public duties. In Waterworks v. School District,
In our opinion, the plaintiff was required by its contract to furnish free of charge, for the time sued for, to the public schools located within the corporate limits of the town of Henderson, and, having performed this obligation, it cannot recover the value of the water so furnished. The fact that other children than those that live in the city limits are permitted to attend these schools we do not think should relieve the plaintiff of its obligation. The power of the Legislature to permit this was known, or ought to have been known, to the plaintiff, and it could by proper words in the contract have restricted and limited its duty and obligation. The schools are public; they are within the corporate limits. The Legislature has been proper to entrust their management to the defendant, a corporate body, separate and distinct from the town of Henderson, and extended the territorial area of its control. It has located six public schools in the area beyond the corporate limits, which do not demand free water and are not beneficiaries of the contract, and it has located two schools in the town limits; these schools are open to the children who live in the town and to some others living (180) beyond the town limits. A very large majority of the children attending these two schools live within the town limits. This stipulation, while imposing upon the plaintiff the duty to furnish water free of charge, for drinking purposes, for toilet and water-closets in the school buildings, does not, of course, require of the plaintiff to furnish water for sprinkling lawns, yards, play grounds or for bath rooms or bathing pools, but only for the necessary purposes stated above. We are therefore *176 of the opinion that the plaintiff has nothing to justify complain of in his Honor's judgment. In plaintiff's appeal we find
No error.
BETWEEN THE SAME PARTIES.
DEFENDANTS' APPEAL.
Addendum
The facts are set out in the plaintiff's appeal in this case. What we have said in disposing of that appeal indicates our opinion on the defendant's appeal. The defendant appealed because his Honor, upon the agreed facts, required it to pay one-third of the amount of plaintiff's bill for water furnished the two public schools conducted in the corporate limits of the town of Henderson, based upon the proportion of the number of school children living beyond the town limits, to the total number of children within the school territory under control of defendant. We do not think this fact sufficient to relieve the plaintiff; for if the contract be so construed and the words of the stipulation so interpreted, the effect would be to make these schools in the corporate limits, in this relation to the plaintiff, public schools as to all children in the town limits and private schools as to those attending it who live without the corporate limits. The "public schools are the units, and the obligation is to furnish these free water for the necessary purposes," as stated in plaintiff's appeal. This same section of the contract obliges plaintiff to furnish water free of charge for man and beast at the public fountains, but forbids the taking of water from these fountains for private use. Can it be said that plaintiff must furnish water free for man and beast who inhabit the town and can charge for the men and beasts who drink at these fountains, but who live outside of the town, and the amount of charge can be ascertained by numbering those who live beyond the limits and those who live within the limits? The mere suggestion of such a construction contains its answer. The considerations that determine one should determine the other. In the one case the stipulation is to furnish water free to thepublic fountains; in the other, to furnish water free to the public schools. In rendering judgment against the defendant there was
Error.
Cited: Hotel Co. v. Red Springs,
(181)