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NORTH CAROLINA SUPREME COURT.

Thomas FAWCETT et al.

v.

MT. AIRY, Appt.

(........N. C................... .)

1. The expense of erecting and operating plants for supplying water and electric light for municipal use and sale to persons residing in the municipality is a necessary one, within the meaning of a constitutional provision permitting municipal corporations to incur such expenses without submitting the proposition to its voters. 2. The power of a municipal corporation to light its streets includes power to procure a plant for that purpose, if necessary.

(December 19, 1903.)

A PPEAL by defendant from a judgment of the Superior Court for Surry County in plaintiffs' favor in a suit to enjoin the incurrence of indebtedness for the erection of water and light plants. Reversed.

The facts are stated in the opinion. Mr. S. P. Graves, for appellant: The expenditure of $15,000 for the completion of the waterworks system and electric light plant of the town of Mt. Airy is

a necessary expense.

A municipal corporation proper is created mainly for the interest, advantage, and convenience of the locality and its people. Dill. Mun. Corp. 3d ed. § 23. Municipal corporations have the authority, independent of express provision therefor, to furnish light for their streets and other public places, as a part of their general police power.

20 Am. & Eng. Enc. Law, 2d ed. p. 1147; Hay v. Springfield, 64 Ill. App. 671.

The power to provide for an adequate and proper water supply is embraced within the general police power to make proper provision for the security, welfare, health, and good government of the inhabitants, or the authority to make such contracts as shall be deemed necessary for the welfare of the municipality.

NOTE. As to power of city to incur expense for electric light plants, see also, in this series,

Crawfordsville v. Braden, 14 L. R. A. 268, and

note; Linn v. Chambersburg, 25 L. R. A. 217; Jacksonville Electric Light Co. v. Jacksonville, 30 L. R. A. 540; Citizens' Gaslight Co. v. Wakefield, 31 L. R. A. 457; Mayo v. Washington, 40 L. R. A. 163; and Mitchell v. Negaunee, 38 L. R. A. 157.

20 Am. & Eng. Enc. Law, 2d ed. p. 1148; Rome v. Cabot, 28 Ga. 50; Livingston v. Pippin, 31 Ala. 542.

Such power would seem necessarily incident to the creation of the corporation, if not, indeed, essential to the declared objects and purposes of the corporation.

Mayo v. Washington, 122 N. C. 5, 40 L. R. A. 163, 29 S. E. 343; Raleigh Gaslight Co. v. Raleigh, 75 N. C. 274; Croswell, Electricity, § 190; Crawfordsville v. Braden, 130 Ind. 149, 14 L. R. A. 268, 30 Am. St. Rep. 214, 28 N. E. 849; Mauldin v. Greenville, 33 S. C. 1, 8 L. R. A. 291, 11 S. E. 434; Lott v. Waycross, 84 Ga. 681, 11 S. E. 558.

Repairing and building bridges, and building courthouses, are necessary expenses of a county.

Brodnax v. Groom, 64 N. C. 244; Satterthwaite v. Beaufort County, 76 N. C. 153; Smith v. Newbern, 70 N. C. 14, 16 Am. Rep. 766; McLin v. Newbern, 70 N. C. 12.

The discretion of municipal corporations within the sphere of their powers is not subject to judicial control.

Valparaiso v. Gardner, 97 Ind. 1, 49 Am. Rep. 416; 15 Am. & Eng. Enc. Law, p. 1040. Messrs. Carter & Lewellyn for appellees.

Montgomery, J., delivered the opinion of the court:

Whether a city or town has the right to incur an indebtedness for the erection and

operation of plants for the supply of water and electric light for municipal use, and to sell to its inhabitants, as a necessary municipal expense, is the question again presented to us for decision. Indebtedness in

curred by a city or town for a supply of water stands on the same footing as indebtedness incurred for lighting purposes, and, if such indebtedness be a necessary expense, then whether or not a municipality may incur it does not depend upon the approval of the proposition by a majority of the qualified voters of the municipality. It is only in cases where counties, cities, or towns undertake to contract debts or pledge their faith, or loan their credit, or levy taxes, except for the necessary expenses thereof, that the submission of the proposition must be made to a vote of the qualified voters of 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 State ex rel. Atty. Gen. v. Toledo, 11 L. R. A. 729; Illinois Trust & Sav. Bank v. Arkansas City, 34 L. R. A. 518; Huron Waterworks Co. v. Huron, 30 L. R. A. 848; Thrift v. Elizabeth City, 44 L. R. A. 427; and Edgerton v. Golds

boro Water Co. 48 L. R. A. 444.

N. C. 267. It is almost impossible to define, in legal phraseology, the meaning of the words "necessary expense," as applied to the wants of a city or town government. A precise line cannot be drawn between what are and what are not such expenses. The

for purposes or objects that are only for the procurement or maintenance of things absolutely essential to the existence of the municipality. The expenditure of money for the widening of streets, the erection of

are all considered as necessary expenses, and those things are not essential to the life of the municipality. A city or town might be fairly well governed, and be prosperous, without having appointed and fixed particu

consequence is that, as municipalities grow | mean expenses incurred, or to be incurred, in wealth and population, as civilization advances with the habits and customs of necessary changes, the aid of the courts is constantly invoked to make decisions on this subject. In the nature of things it could not be otherwise; and it is not to be ex-market houses, town clocks, and hay scales pected, in the changed conditions which occur in the lives of progressive people, that things deemed unnecessary in the government of municipal corporations in one age should be so considered for all future time. In the efforts of the courts to check extrav-lar places for the sale of market produce, or agance and to prevent corruption in the government of towns and cities, the judicial branch of the government has probably stood by former decisions from too conservative a standpoint, and thereby obstructed the advance of business ideas which would be most beneficial if put into operation; and this conservatism of the courts, outgrown by the march of progress, sometimes appears at a serious disadvantage. On this subject this court, in Wilson v. Charlotte, 74 N. C. 759, uses the following instructive and suggestive language: "The analogy of the law of necessaries for infants is the only one that occurs to us. It is held that if, considering the means and station in life of the infant, the articles sold to him may be necessaries under any circumstances, they come within a class for which the infant may be liable, ard, upon his refusal to pay, it is for a jury to determine whether, under the actual circumstances, they were necessary. If, however, the articles are merely ornamental, and such as cannot under any circumstances be necessary to one of the means and station of the infant, the court may, as a matter of law, declare that the infant is not liable. We do not undertake to say that this analogy will furnish a rule which will admit of a close application. But if treated merely as an analogy in the absence of other guides, it may be of some general use." It seems strange that it should be declared by some of our courts of highest reputation that the purchase of a town clock or hay scales or a pump is a necessary expense, when the supply of light to enable its citizens to walk its streets in security, or a supply of wholesome water to prevent disease and suffering, should he held as not a necessary expense. It is pretty generally held by the courts that the expense incurred for the widening of streets is a necessary expense; that a market house is a necessary expense; and, surely, if that be sound law, the courts ought to hesitate before they would pronounce a debt incurred for the furnishing of light and water not to be a necessary expense. And it seems to us that it may be reasonably considered as certain that the words "necessary expense" do not

without keeping the time of day or weighing grain and fodder; and certainly expenses incurred for water and light are more necessary than those for a market house, clocks, and scales. The words "necessary expense,' then, must mean such expenses as are or may be incurred in the establishing and procuring of those things without which the peace and order of the community, its moral interests, and the protection of its property and that of the property and persons of its inhabitants, would seriously suffer considerable damage; leaving out of view the matter of the great inconvenience that would be attendant upon our present social life for want of such expenditures. The use of water from wells dug in populous communities is proscribed by the recent progress made in the science of bacteriology, the practical lessons of that science having been learned by the people generally. It is of common knowledge that the most fearful scourges of certain most dangerous forms of fever arise from the use of water from wells in towns and cities, and it is out of the power of individuals in towns and cities to erect and operate appliances for supply of water. As to the question of lighting the streets and public places, the experience of all who live in towns and cities of any considerable population is that, without lights upon the streets and in the public buildings, both life and property would be insecure, to say nothing of the almost complete destruction of the conveniences of life and the marring of its social features. The fire department, probably the most important of the municipal departments, would be rendered ineffective, and a considerable part of the commercetrade of the country-would be destroyed, for, under our changed conditions, a good deal of the traffic between different communities and a respectable part of our mail service are conducted at night. It will not do to say that a city or town may expend money or incur a debt for the purchase of lights by the month or the year, but that it may not incur a debt for the construction and operation of a system of water works or for the instalment of an electric plant for lighting. If the matter of lighting is a nec

essary expense, then how and in what manner the city shall furnish such lighting is with the authorities of the city or town to determine. The courts determine what class of expenditures made or to be made by a municipal corporation come under the definition of "necessary expenses." The governing authorities of the municipal corporations are vested with the power to determine when they are needed, and, except in cases of fraud, the courts cannot control the discretion of the commissioners.

Our conclusion, then, is that an expense incurred by a city or town for the purpose of building and operating plants to furnish water and lights is a necessary expense, and is not such a debt as must be submitted to a popular vote before it can be incurred, under § 7 of article 7 of the Constitution, and that, under the general law of North Carolina in respect to cities and towns (Code, §§ 3800, 3821), municipal corporations may contract such debts, and provide for their payment, unless there is some feature in the charter of such city or town which prohibits it.

The power to light the streets and public buildings and places of a city is one of implication, where it is not specially conferred, because the use of such power is necessary to fully protect the lives and comfort and property of its inhabitants. It is a most important factor, too, in the preservation of the peace and order of the community. Croswell, Electricity, § 190; Mauldin v. Greenville, 33 S. C. 1, 8 L. R. A. 291, 11 S. E. 434; Lott v. Waycross, 84 Ga. 681, 11 S. E. 558. In the case of Crawfordsville v. Braden, 130 Ind. 157, 14 L. R. A. 268, 30 Am. St. Rep. 214, 28 N. E. 852, the court said: "So far as lighting the streets, alleys, and public places of a municipal corporation is concerned, we think that, independently of any statutory power, the municipal authorities have inherent power to provide for lighting them. If so, unless their discretion is controlled by some express statutory restriction, they may, in their discretion, provide that form of light which is best suited to the wants and the financial conditions of

the corporation." It is well settled that the discretion of municipal corporations within the sphere of their powers is not subject to judicial control, except in cases where fraud is shown, or where the power and discretion are grossly abused to the oppression of the citizen. We can see no good reason why they may not also, without statutory authority, provide and maintain the necessary plant to generate and supply the electricity required. Possessing authority to do the lighting, that power carries with it incidentally the further power to procure or furnish whatever is necessary for the production and dissemination of the light.

The cases on this subject heretofore decided by this court to the contrary of the present decision, one of which was written for the court by this writer, are overruled. The conclusion to which the present chief justice arrived in Mayo v. Washington, 122 N. C. 5, 40 L. R. A. 163, 29 S. E. 343, is the conclusion at which we have arrived in this case.

In the case before us the defendant, the town of Mt. Airy, was authorized by an act of the general assembly at its session of 1901 (Priv. Acts 1901, p. 594, chap. 216) to submit to the qualified voters of the town the question of issuing $50,000 of town bonds for the purpose of defraying the expenses of constructing a system of waterworks and installing an electric plant to furnish the town with water and light. The question was submitted and carried, and the bonds were issued and sold. The proceeds were applied for the purposes mentioned in the act, but were insuflicient to complete the plants. The board of aldermen of the town then passed an ordinance that they do borrow the sum of $15,000 upon pledging repayment by issuing bonds of like amount, with interest. The plaintiffs commenced this action to enjoin the issuing of the bonds, and the injunction was granted by his honor Judge McNeill, and the defendant appealed. His honor followed the decisions of this court, and the error he committed was not his own, but it was error nevertheless. Reversed.

UNITED STATES CIRCUIT COURT OF APPEALS, SIXTH CIRCUIT. John J. KORN, Admr., etc., of John J. Korn, Deceased, Plff. in Err.,

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ejecting from a train, a short distance from the station, within the yard limits, and near dwelling houses, a man who, although apparently intoxicated, was able to walk and carry on intelligent conversation, although he had been informed at the station that the man was not fit to travel; where the man, when asked for his fare, refused to pay it or tell bis destination.

son to danger by expulsion from car, see Roseman v. Carolina C. R. Co. 19 L. R. A. 327, and

foreseen.

2. The ejection of an intoxicated pas- | January, 1898, and remained there until senger from a train within the limits of about 7 o'clock in the evening, when he ena village and near dwelling houses at a time when the temperature was near the freezing tered one of the trains of the defendant gopoint 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 drugs or intoxicating liquor. He was alconflicting 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, 3. Knowledge of a station agent that who was about to go off duty and cross the a 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. and he refused to go to Portsmouth. He 4. That a person is known to be under 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 indimoney, and was not fit to go on the train, cate that he is not fit to care for himself. and the trainman pushed him off and closed the door. He then went up to the middle of the train, and climbed up the steps of the day coach, between the day coach and the smoker. The conductor then came up, and was told by the witness Charles Molster that the deceased was not fit to travel, and Molster, or some of those standing about, also told the conductor that he had no money; but the deceased produced a bag of silver, and the conductor then said, "I guess we will have to take him," and pushed him from the day car into the smoker. The witness Boughner says that, shortly before the train arrived, deceased was walking up and down the platform; that, when roused up by the station agent, he seemed to have his presence of mind, and knew where he was going and what he was doing.

E

(July 7, 1903.)

RROR to the Circuit Court of the United States for the Western Division of the Southern District of Ohio to review a judgment in favor of defendant in an action brought to recover damages for negligence which was alleged to have resulted in the death of plaintiff's intestate. Affirmed.

Statement by Richards, Circuit Judge: This was an action brought by the administrator of John J. Korn, deceased, to recover damages for the death of Korn through the negligence and wrongful act of the defendant railway company. The trial judge instructed the jury to return a verdict for the defendant, on the ground that he was unable to find, on the uncontroverted facts, that there was any wrongful act on the part of the trainmen representing the defendant which was the proximate cause of the death of Korn. A motion for a new trial having been overruled, the case has been brought

here for review.

The facts shown by the plaintiff's evidence are stated with substantial accuracy in the opinion of the court below overruling the motion for a new trial:

The deceased came to the station of the defendant in South Portsmouth about 2 o'clock in the afternoon of the 28th day of

note; Louisville & N. R. Co. v. Johnson, 31 L.
R. A. 372; Haug v. Great Northern R. Co. 42 L.
R. A. 664; Waldron v. Louisville & N. R. Co. 54
L. R. A. 919; and Chesapeake & O. R. Co. v.
Saulsberry, 56 L. R. A. 580.

As to duty to intoxicated passenger generally,

and hallooed to him to come and go over the The witness Howe says: "He came out river. He said, 'No; I don't want to go over in Kentucky.' Finally they got him out, and about the time they got him out the train arrived, and he wanted to get on. Mr. Glockner-I could not say now whether anybody else had hold of him. Anyway, he got away from Mr. Glockner and went to the rear coach. The door was fastened, and he got off and came to the next, and got on, and someone said: 'Don't let him on there. He hasn't got any money.' And then he went in the coach, and came back out. He said,

see Missouri P. R. Co. v. Evans, 1 L. R. A. 476; Cincinnati, I. St. L. & C. R. Co. v. Cooper, 6 L R. A. 241; Fisher v. West Virginia & P. R. Co. 23 L. R. A. 758, 33 L. R. A. 69; and Wheeler v. Grand Trunk R. Co. 54 L. R. A. 955.

'I have got money,' and pulled out a sack | said he had enough money to buy that road. with some money in it." Then they started the train.

The witness Johnson testified as follows: Q. When did you first notice him on the train?

A. When the collector told him to get off.
Q. Did he get off?
A. No, sir.

Q. What did he do?

A. Well, my recollection is, he asked the collector why he should get off. The collector told him, because he had no money. He says, "You have got no money."

Q. Did Korn reply to that?

A. He did; put his hand in his pocket and took out a bag, which I supposed contained silver,-$20 or $25. I don't know how much, but I know it was silver. I thought that was what it was. He satisfied the collector, at least, he had money.

Q. What happened then, if you remember? A. There was nothing else done. The collector and conductor went on about their business until the train stopped. Korn, if he did anything I don't remember-only walked up and down the aisle.

Q. Then what happened, Mr. Ruane?
A. The collector came in from the front of

that car-came in and walked back— and he
says, "Fare." He didn't answer him then,
and he says the second time; he says,
"Fare;" and he says to Korn, then, "Where
are you going?" and Korn said, says he,
"None of your damned business." The con-
ductor stood right behind the collector when
he made this remark, so he pulled the bell
cord, and they stopped and put him off the

train.

Q. Was Korn sitting on the arm of your seat during this conversation.

A. He was leaning on it; yes, sir; leaning on it.

He was put off the train about 7 o'clock in the evening of the 28th of January, 1898, about 300 yards from the station, and within the yard limits of the station in the outskirts of the little village of Springville or South Portsmouth. The weather was near the freezing point, and during the night 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 nattrain 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.

Q. Then what happened?

A. The collector asked him where he was going, and he told him he was going to hell. Q. Go on.

A. The conductor then insisted on him telling where he was going, and said he must have his fare. I don't recollect the words he said, but it was a good deal the same line as he answered the first time; and after a few words the conductor pulled the cord, and the train stopped, and the conductor and the collector each took hold of an arm and led him off.

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stated by Dr. Titus, a little of some kind of liquor, and about a dram bottle half full of cocaine hydrochlorate in fine crystals; and, in answer to questions, Dr. Titus testified as follows:

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