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Thomas FAWCETT et al.

20 Am. & Eng. Enc. Law, 2d ed. p. 1148;

Rome v. Cabot, 28 Ga. 50; Livingston v. MT. AIRY, Appt.

Pippin, 31 Ala. 542.

Such power would seem necessarily inci. (........N. C.........)

dent to the creation of the corporation, if 1. The expense of erecting and operat- not, indeed, essential to the declared objects ing plants for supplying water and and purposes of the corporation. electric light for municipal use and sale Mayo v. Washington, 122 N. C. 5, 40 L. R. to persons residing in the municipality is a

A. 163, 29 S. E. 343; Raleigh Gaslight Co. necessary one, within the meaning of a con

v. Raleigh, 75 N. C. 274; Croswell, Elecstitutional provision permitting municipal corporations to incur such expenses without sub- tricity, $ 190; Crawfordsville v. Braden, 130 mitting the proposition to its voters.

Ind. 149, 14 L. R. A. 268, 30 Am. St. Rep. The power of a municipal corpora- 214, 28 N. E. 849; Mauldin v. Greenville, 33 tion to light its streets includes power S. C. 1, 8 L. R. A. 291, 11 S. E. 434; Lott v. to procure a plant for that purpose, if neces

Waycross, 84 Ga. 681, 11 S. E. 558. sary. (December 19, 1903.)

Repairing and building bridges, and build

ing courthouses, are necessary expenses of a A PPEAL by defendant from a judgment of

county. the Superior Court for Surry County in

Brodnax v. Groom, 64 N. C. 244; Satter. plaintiffs' favor in a suit to enjoin the incur thwaite v. Beaufort County, 76 N. C. 153; rence of indebtedness for the erection of wa- Smith v. Neubern, 70 N. C. 14, 16 Am. Rep. ter and light plants. Reversed.

766; McLin v. Neubern, 70 N. C. 12. The facts are stated in the opinion.

The discretion of municipal corporations Mr. S. P. Graves, for appellant:

within the sphere of their powers is not subThe expenditure of $15,000 for the eom-ject to judicial control. pletion of the waterworks system and elec

Valparaiso v. Gardner, 97 Ind. 1, 49 Am. tric light plant of the town of Mt. Airy is Rep. 416; 15 Am. & Eng. Enc. Law,

p. 1040. a necessary expense.

Messrs. Carter & Lewellyn for appelA municipal corporation proper is created lees. mainly for the interest, advantage, and convenience of the locality and its people.

Montgomery, J., delivered the opinion Dill. Mun. Corp. 3d ed. § 23.

of the court: Municipal corporations have the authority, independent of express provision there incur an indebtedness for the erection and

Whether a city or town has the right to for, to furnish light for their streets and operation of plants for the supply of water other public places, as a part of their gener- and electric light for municipal use, and to al police power.

sell to its inhabitants, as a necessary mu20 Am. & Eng. Enc. Law, 2d ed. p. 1147;

nicipal expense, is the question again preHay v. Springfield, 64 Ill. App. 671.

The power to provide for an adequate and sented to us for decision. Indebtedness inproper water supply is embraced within the curred by a city or town for a supply of

water stands on the same footing as indebtgeneral police power to make proper provision for the security, welfare, health, and edness incurred for lighting purposes, and, good government of the inhabitants, or the if such indebtedness be a necessary expense, authority to make such contracts as shall then whether or not a municipality may inbe deemed necessary for the welfare of the cur it does not depend upon the approval of municipality.

the proposition by a majority of the quali

fied voters of the municipality. It is only NOTE.--As to power of city to incur expense in cases where counties, cities, or towns un. for electric light plants, see also, in this series, dertake to contract debts or pledge their Crawfordsville v. Braden, 14 L. R. A. 268, and note; Linn v. Chambersburg, 25 L. R. A. 217; faith, or loan their credit, or levy taxes, exJacksonville Electric Light Co. v. Jacksonville, cept for the necessary expenses thereof, that 30 L. R. A. 540 ; Citizens' Gaslight Co. v. Wake the submission of the proposition must be field, 31 L. R. A. 457; Mayo v. Washington, 40 made to a vote of the qualified voters of L. R. A. 163; and Mitchell v. Negaunee, 38 L. such county, city, or town. Wilson v. Char.

As to power of municipal corporation to pro- lotte, 74 N. C. 748; Tucker v. Raleigh, 75 vide water supply, see also cases in note to N. C. 267. It is almost impossible to define, State ea rel. Atty. Gen. v. Toledo, 11 L. R. A. in legal phraseology, the meaning of the 729 ; ulinois Trust & Sav. Bank v. Arkansas words “necessary expense,” as applied to the City, 34 L. R. A. 518 ; Iluron Waterworks Co. v.

wants of a city or town government. A Huron, 30 L. R. A. 848; Thrift v. Elizabeth City, 44 L. R. A. 427; and Edgerton v. Golds- precise line cannot be drawn between what boro Water Co. 48 L. R. A. 444.

are and what are not such expenses. The

R. A. 157.

consequence is that, as municipalities grow mean expenses incurred, or to be incurred, in wealth and population, as civilization ad-for purposes or objects that are only for the vances with the habits and customs of neces- procurement or maintenance of things absary changes, the aid of the courts is con- solutely essential to the existence of the stantly invoked to make decisions on this municipality. The expenditure of money subject. In the nature of things it could for the widening of streets, the erection of not be otherwise; and it is not to be ex- market houses, town clocks, and hay scales pected, in the changed conditions which oc- are all considered as necessary expenses, and cur in the lives of progressive people, that those things are not essential to the life of things deemed unnecessary in the govern the municipality. A city or town might be ment of municipal corporations in one age fairly well governed, and be prosperous, should be so considered for all future time. without having appointed and fixed particuIn the efforts of the courts to check extrav- lar places for the sale of market produce, or agance and to prevent corruption in the gov- without keeping the time of day or weighernment of towns and cities, the judicial ing grain and fodder; and certainly expenses branch of the government has probably incurred for water and light are more necstood by former decisions from too conserva essary than those for a market house, clocks, tive a standpoint, and thereby obstructed and scales. The words “necessary expense,” the advance of business ideas which would then, must mean such expenses as are or be most beneficial if put into operation; may be incurred in the establishing and proand this conservatism of the courts, out-curing of those things without which the grown by the march of progress, sometimes peace and order of the community, its moral appears at a serious disadvantage. On this interests, and the protection of its property subject this court, in Wilson v. Charlotte, and that of the property and persons of its 74 N. C. 759, uses the following instructive inhabitants, would seriously suffer considerand suggestive language: "The analogy of able damage; leaving out of view the matter the law of necessaries for infants is the only of the great inconvenience that would be atone that occurs to us. It is held that if, tendant upon our present social life for considering the means and station in life of want of such expenditures. The use of wathe infant, the articles sold to him may be ter from wells dug in populous communinecessaries under any circumstances, they ties is proscribed by the recent progress come within a class for which the infant made in the science of bacteriology, the may be liable, ard, upon his refusal to pay, practical lessons of that science having been it is for a jury to determine whether, under learned hy the people generally. It is of the actual circumstances, they were neces- common knowledge that the most fearful sary. If, however, the articles are merely scourges of certain most dangerous forms of ornamental, and such as cannot under any fever arise from the use of water from wells circumstances be necessary to one of the in towns and cities, and it is out of the powmeans and station of the infant, the court er of individuals in towns and cities to erect may, as a matter of law, declare that the in- and operate appliances for supply of water. fant is not liable. We do not undertake to As to the question of lighting the streets say that this analogy will furnish a rule and public places, the experience of all who which will admit of a close application. But live in towns and cities of any considerable if treated merely as an analogy in the ab- population is that, without lights upon the sence of other guides, it may be of some streets and in the public buildings, both life general use.” It seems strange that it should and property would be insecure, to say nothbe declared by some of our courts of high-ing of the almost complete destruction of the est reputation that the purchase of a town conveniences of life and the marring of its clock or hay scales or a pump is a necessary social features. The fire department, probexpense, when the supply of light to enable ably the most important of the municipal its citizens to walk its streets in security, or departments, would be rendered ineffective, a supply of wholesome water to prevent dis- and a considerable part of the commerce ease and suffering, should he held as not a trade of the country-would be destroyed, necessary expense. It is pretty generally for, under our changed conditions, a good held by the courts that the expense incurred deal of the traffic between different commufor the widening of streets is a necessary nities and a respectable part of our mail expense; that a market house is a necessary service are conducted at night. It will not expense; and, surely, if that be sound law, I do to say that a city or town may expend the courts ought to hesitate before they noney or incur a debt for the purchase of would pronounce a debt incurred for the lights by the month or the year, but that it furnishing of light and water not to be a may not incur a debt for the construction necessary expense. And it seems to us that and operation of a system of water works or it may be reasonably considered as certain for the instalment of an electric plant for that the words “necessary expense” do not lighting. If the matter of lighting is a necessary expense, then how and in what man- | the corporation.” It is well settled that the ner the city shall furnish such lighting is discretion of municipal corporations within with the authorities of the city or town to the sphere of their powers is not subject to determine. The courts determine what class judicial control, except in cases where fraud of expenditures made or to be made by a is shown, or where the power and discretion municipal corporation come under the defini. are grossly abused to the oppression of the tion of “necessary expenses.” The governing citizen. We can see no good reason why authorities of the municipal corporations are they may not also, without statutory authorvested with the power to determine when ity, provide and maintain the necessary they are needed, and, except in cases of plant to generate and supply the electricity fraud, the courts cannot control the discre- required. Possessing authority to do the tion of the commissioners.

lighting, that power carries with it incidentOur conclusion, then, is that an expense ally the further power to procure or furnish incurred by a city or town for the purpose whatever is necessary for the production of building and operating plants to furnish and dissemination of the light. water and lights is a necessary expense, and The cases on this subject heretofore deis not such a debt as must be submitted to cided by this court to the contrary of the a popular vote before it can be incurred, present decision, one of which was written under § 7 of article 7 of the Constitution, for the court by this writer, are overruled. and that, under the general law of North The conclusion to which the present chief Carolina in respect to cities and towns justice arrived in Mayo v. Washington, 122 (Code, &$ 3800, 3821), municipal corpora- N. C. 5, 40 L. R. A. 163, 29 S. E. 343, is the tions may contract such debts, and provide conclusion at which we have arrived in this for their payment, unless there is some fea- case. ture in the charter of such city or town In the case before us the defendant, the which prohibits it.

town of Mt. Airy, was authorized by an act The power to light the streets and public of the general assembly at its session of 1901 buildings and places of a city is one of im- (Priv. Acts 1901, p. 594, chap. 216) to subplication, where it is not specially conferred, mit to the qualified voters of the town the because the use of such power is necessary question of issuing $50,000 of town bonds to fully protect the lives and comfort and for the purpose of defraying the expenses of property of its inhabitants. It is a most constructing a system of waterworks and inimportant factor, too, in the preservation of stalling an electric plant to furnish the town the peace and order of the community. Cros- with water and light. The question was well, Electricity, $ 190; Mauldin v. Green- submitted and carried, and the bonds were ville, 33 S. C. 1, 8 L. R. A. 291, 11 S. E. issued and sold. The proceeds were applied 434; Lott v. Waycross, 84 Ga. 681, 11 S. E. for the purposes mentioned in the act, but 558. In the case of Craufordsville v. Brad were insullicient to complete the plants. The en, 130 Ind. 157, 14 L. R. A. 268, 30 Am. St. board of aldermen of the town then passed Rep. 214, 28 N. E. 852, the court said: “So an ordinance that they do borrow the sum far as lighting the streets, alleys, and public of $15,000 upon pledging repayment by issuplaces of a municipal corporation is con- ing bonds of like amount, with interest. The cerned, we think that, independently of any plaintiffs commenced this action to enjoin statutory power, the municipal authorities the issuing of the bonds, and the injunction have inherent power to provide for lighting was granted by his honor Judge McNeill, and them. If so, unless their discretion is con- the defendant appealed. His honor followed trolled by some express statutory restric- the decisions of this court, and the error he tion, they may, in their discretion, proside committed was not his own, but it was error that form of light which is best suited to nevertheless. the wants and the financial conditions of Reversed.

UNITED STATES CIRCUIT COURT OF APPEALS, SIXTH CIRCUIT. John J. KORN, Admr., etc., of John J. Korn, ejecting from a train, a short distance Deceased, Piff. in Err.,

from the station, within the yard limits, and

near dwelling houses, a man who, although v.

apparently intoxicated, was able to walk and CHESAPEAKE & OHIO RAILWAY COM

carry on intelligent conversation, although he PANY.

had been informed at the station that the man 2. The ejection of an intoxicated pas- January, 1898, and remained there until

was not fit to travel ; where the man, when (125 Fed. 897.)

asked for his fare, refused to pay it or tell 1. A conductor was not negligent in his destination.

NOTE.--For other cases in this series as to son to danger by expulsion from car, see Roseliability of carrier for exposure of drunken per- man v. Carolina C. R. Co. 19 L. R. A, 327, and note; Louisville & N. R. Co. v. Johnson, 31 L. see Missouri P. R. Co. v. Evans, 1 L. R. A. 476 ; R. A. 372 ; Haug v. Great Northern R. Co. 42 L. Cincinnati, I. St. L. & C. R. Co. v. Cooper, 6 L R. A, 664 ; Waldron v. Louisville & N. R. Co. 54 R. A. 241; Fisher v. West Virginia & P. R. Co. L. R. A. 919; and Chesapeake & O. R. Co. v. 23 L. R. A. 758, 33 L. R. A. 69; and Wheeler v. Saulsberry, 56 L. R. A. 580.

senger from a train within the limits of about 7 o'clock in the evening, when he en. a village and near dwelling houses at a time tered one of the trains of the defendant gowhen the temperature was near the freezing point cannot be said to be the cause of his ing east as a passenger. When he came to death, when his body was afterwards found the station he was in an almost helpless conwith cocaine in fatal quantities upon it near dition. His manner and appearance indithe track, in a composed attitude, showing cated that he was under the influence of plainly that he had invited death, and awaited its coming, although the evidence is

He was al.

drugs or intoxicating liquor. conflicting whether the death was caused by lowed to lie down in the telegraph office, and exposure or poison, where neither the time, part of the time he sat about the public place, nor circumstances, of ejection were room of the station, asleep, or apparently dangerous, and the death was not caused by asleep. Near the time of the arrival of the any danger which the conductor could have evening train going east, the station agent,

foreseen. 3. Knowledge of a station agent that who was about to go off duty and cross the

person desiring to board a train river to Portsmouth, Ohio, roused him up is under the influence of cocaine is not im- and endeavored to persuade him to go with putable to the company, since it is not his him to Portsmouth, where he could be cared duty to pass upon the effect of that condition for; but the fresh air seemed to revive him,

upon the passenger's fitness to travel. 4. That a person is known to be under and he refused to go to Portsmouth. He

the influence of cocaine does not re- tried to board the rear car of the train, quire the conductor of a train to refuse to which had just come in. Glockner, the stapermit him to enter the train when there is tion agent, told the trainman that he had no nothing in his condition or conduct to indicate that he is not fit to care for himself.

money, and was not fit to go on the train,

and the trainman pushed him off and closed (July 7, 1903.)

the door. He then went up to the middle of

the train, and climbed up the steps of the E

RROR to the Circuit Court of the United day coach, between the day coach and the

States for the Western Division of smoker. The conductor then came up, and the Southeru District of Ohio to review a was told by the witness Charles Molster that judgment in favor of defendant in an action the deceased was not fit to travel, and Molbrought to recover damages for negligence ster, or some of those standing about, also which was alleged to have resulted in the told the conductor that he had no money; death of plaintiff's intestate. Affirmed. but the deceased produced a bag of silver,

and the conductor then said, "I guess we Statement by Richards, Circuit Judge: will have to take him," and pushed him from

This was an action brought by the admin the day car into the smoker. The witness istrator of John J. Korn, deceased, to re- Boughner says that, shortly before the train cover damages for the death of Korn through arrived, deceased was walking up and down the negligence and wrongful act of the de- the platform; that, when roused up by the fendant railway company. The trial judge station agent, he seemed to have his presence instructed the jury to return a verdict for of mind, and knew where he was going and the defendant, on the ground that he was

what he was doing. unable to find, on the uncontroverted facts,

The witness Howe says: “He came out that there was any wrongful act on the part of the trainmen representing the defendant and hallooed to him to come and go over the which was the proximate cause of the death river. He said, 'No; I don't want to go over of Korn. A motion for a new trial having in Kentucky.' Finally they got him out, been overruled, the case has been brought and about the time they got him out the here for review.

train arrived, and he wanted to get on. Mr. The faets shown by the plaintiff's evidence Glockner-I could not say now whether anyare stated with substantial accuracy in the body else had hold of him. Anyway, he got opinion of the court below overruling the mo- away from Mr. Glockner and went to the tion for a new trial:

rear coach. The door was fastened, and he

got off and came to the next, and got on, and The deceased came to the station of the someone said: “Don't let him on there. He defendant in South Portsmouth about 2 hasn't got any money. And then he went o'clock in the afternoon of the 28th day of in the coach, and came back out. He said, 'I have got money,' and pulled out a sack | said he had enough money to buy that road. with some money in it."

Grand Trunk R. Co. 54 L. R. A. 955. As to duty to intoxicated passenger generally,

Then they started the train.

Q. Then what happened, Mr. Ruane ! The witness Johnson testified as follows:

A. The collector came in from the front of Q. When did you first notice him on the that car-came in and walked back, and he train?

says, "Fare.” He didn't answer him then, A. When the collector told him to get off. and he says the second time; he says, Q. Did he get off ?

"Fare;” and he says to Korn, then, "Where A. No, sir.

are you going ?” and Korn said, says he, Q. What did he do?

“None of your damned business.” The conA. Well, my recollection is, he asked the ductor stood right behind the collector when collector why he should get off. The col- he made this remark, so he pulled the bell lector told him, because he had no money. cord, and they stopped and put him off the

train, He says, “You have got no money." Q. Did Korn reply to that?

Q. Was Korn sitting on the arm of your d. He did; put his hand in his pocket and seat during this conversation. took out a bag, which I supposed contained

A. He was leaning on it; yes, sir; leaning silver,—$20 or $25. I don't know how on it. much, but I know it was silver. I thought that was what it was. He satisfied the col- He was put off the train about 7 o'clock lector, at least, he had money.

in the evening of the 28th of January, 1898, Q. What happened then, if you remember? about 300 yards from the station, and within

A. There was nothing else done. The col- the yard limits of the station in the outlector and conductor went on about their skirts of the little village of Springvule or business until the train stopped. Korn, if South Portsmouth. The weather was near he did anything I don't remember-only the freezing point, and during the night walked up and down the aisle.

there was a light snow. In the morning he Q. Do you remember whether he sat down was found dead within 25 feet of the railin the car?

road track, near several houses, two of which A. I have no recollection of seeing him. were within about 50 feet of the place where I don't think he took a seat.

the body was found. His hat was folded Q. Did he attract your attention after the under his head, and he was lying in a nat. train started ?

ural position, and his skin was still soft and 4. Not until the collector asked for his pliable. There was found on his person, as fare.

stated by Dr. Titus, a little of some kind of Q. Then what happened ?

liquor, and about a dram bottle half full of A. The collector asked him where he was cocaine hydrochlorate in fine crystals; and, going, and he told him he was going to hell. in answer to questions, Dr. Titus testified as Q. Go on.

follows: A. The conductor then insisted on him telling where he was going, and said he must

Q. You spoke of a bottle partly filled with have his fare. I don't recollect the words he liquor being found. What did you mean by said, but it was a good deal the same line that? as he answered the first time; and after

A. It was a liquor containing alcohol. a few words the conductor pulled the cord,

Q. About how much had been used from and the train stopped, and the conductor and the bottle of cocaine ? the collector each took hold of an arm and A. About half. There are sixty grains in led him off.

a bottle.

Q. Do you know what quantity taken inThe witness Ruane testified: “Korn came ternally into the system may result fatally? in and leaned his arm up against the seat I

A. The books give as a fatal dose from was occupying. I had sat down, you know. half a grain to twenty-two grains. He leaned his arm up against that seat.”

In answer to a question, the witness Ruane Q. Then what happened?

testified as follows: A. The conductor told him he couldn't A. Well, when the conductor spoke to him, ride on that train. He says, "You cannot and stopped the car and put him off, he says, ride on this train, for you haven't got no "I might as well get off here as any place, money."

for I am going to hell anyhow.” That was Q. Go on.

the only words he used. A. He then reached in his pocket-overcoat pocket-and produced a little sack, He was well educated, had studied medisomething like a shot sack, I guess; and he cine and pharmacy, and had carried on busi

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