§ 889. Legal right to supply light. The operation of a lighting plant involves complicated industrial operations including the purchase of raw material, the employment of skilled workmen and the use of technical manufacturing processes constantly subject to improvement as well as the use of complicated machinery.1020 It involves not only the supply and distribution of the commodity but also its manufacture and the elements of profit and loss either because of these facts to a large extent and one not at all comparable with the furnishing the supply of water. The legal right, however, seems to be recognized.1021 In some cases it is regarded as a duty under a proper exercise of the police power on the part of a municipal corporation to properly light its streets and public buildings in order both to protect lives and property.1022 Where the further right is conceded of furnishing a supply of light to private consumers, it seems to be based not upon a consideration of the strict legal powers of a governmental agent but upon the necessities arising in a particular case and the greater convenience and freedom from interference in the use of highways, the result of where a supply of light to all consumers, both public and private, is fur plant exercises the functions of a private corporation. Nebraska City v. Nebraska Hydraulic G. & C. Co., 9 Neb. 339; Richmond County Gaslight Co. v. Town of Middletown, 59 N. Y. 228; Western Sav. Fund Soc. v. City of Philadelphia, 31 Pa. 175; City of Philadelphia v. Fox, 64 Pa. 169; Baily v. City of Philadelphia, 184 Pa. 594, 39 Atl. 494, 39 L. R. A. 837; State v. Milwaukee Gaslight Co., 29 Wis. 454. See, also, §§ 455 et seq. 1020 See §§ 472, 474, ante. 1021 Tuttle v. Brush Elec. Ill. Co., 50 N. Y. Super. Ct. (18 J. & S.) 464. 1022 New Orleans Gas Co. V. Louisiana Light Co., 115 U. S. 650; Hamilton Gaslight & Coke Co. v. Hamilton City, 146 U. S. 258, affirming 37 Fed. 832; City of Crawfordsville v. Braden, 130 Ind. 149, 28 N. E. 849, 14 L. R. A. 268; Opinion of Justices, 150 Mass. 592, 24 N. E. 1084, 8 L. R. A. 487; Citizens' Gas Light Co. v. Inhabitants of Wakefield, 161 Mass. 432, 37 N. E. 444, 31 L. R. A. 457; Halsey v. Rapid Transit St. R. Co., 47 N. J. Eq. 380; Palmer V. Larchmont Elec. Light Co., 158 N. Y. 231, 52 N. E. 1092, 43 L. R. A. 672; State v. City of Hamilton, 47 Ohio St. 52, 23 N. E. 935; Wheeler v. City of Philadelphia, 77 Pa. 338; Linn v. Chambersburg Borough, 160 Pa. 511, 28 Atl. 842, 25 L. R. A. 217. But see Gaskins v. City of Atlanta, 73 Ga. 746; City of Freeport v. Isbell, 83 Ill. 440; Randall v. Eastern R. Co., 106 Mass. 276; Lyon v. City of Cambridge, 136 Mass. 419; Baily v. City of Philadelphia, 184 Pa. 594, 39 L. R. A. 837. nished by one agency rather than two or more.1023 A further argument, if it is worthy of the name, is based upon the fact that a municipal corporation could scarcely be able to supply itself with light at a reasonable cost if it were restricted to furnishing its own needs. It is necessary, so it is claimed, in order to bring the cost to a reasonable basis, that the number of consumers be largely and relatively increased.102 The question of profit and loss does not, however, legally or properly determine the character of an act as a governmental duty or function. § 890. Direct authority necessary. The power to erect and operate a plant for either the supply of water or light is never included among the implied powers belonging to a public corporation; it must be expressly, positively and legally granted and in unmistakable terms; it cannot be inferred from a general grant of power to provide for the safety, comfort or welfare of the inhabitants of a particular locality.1025 The reason for this principle clearly appears from an application of the doctrine of limited powers to public corporations and the questionable character of the legality of the exercise of such a power. The discussion of the character of public corporations as artificial persons of exceedingly limited and restricted powers will be remembered.1026 A quotation from Judge Cooley may serve to emphasize the rule.1027 "The municipalities must look to the state for such charters of government as the legislature shall 1023 Thomson Houston Elec. Co. v. City of Newton, 42 Fed. 723; City of Crawfordsville v. Braden, 130 Ind. 149, 14 L. R. A. 268; Mitchell v. City of Negaunee, 113 Mich. 359, 38 L. R. A. 157; Linn v. Chambersburg Borough, 160 Pa. 511, 25 L. R. A. 217; Black v. City of Chester, 175 Pa. 101, 34 Atl. 354; Smith v. City of Nashville, 88 Tenn. 464, 7 L. R. A. 469. 1024 Fellows v. Walker, 39 Fed. 651; Jacksonville Elec. Light Co. v. City of Jacksonville, 36 Fla. 229, 18 So. 677, 30 L. R. A. 540; Mitchell v. City of Negaunee, 113 Mich, 359, 71 N. W. 646, 38 L. R. A. 157; State v. City of Toledo, 48 Ohio St. 112, 26 N. E. 1061, 11 L. R. A. 729; Schenck v. Borough of Olyphant, 181 Pa. 191; Townsend Gas & Elec. Co. v. City of Port Townsend, 19 Wash. 407, 53 Pac. 551. 1025 Village of Ladd v. Jones, 61 Ill. App. 584. See §§ 897 and 924, post. 1026 See §§ 108-114 et seq., ante. 1027 Cooley, Const. Lim. (7th Ed.) p. 265, citing many cases. See, also, the general discussion by Cooley of this subject commencing on page 261. see fit to provide; and they cannot prescribe for themselves the details, though they have a right to expect that those charters will be granted with a recognition of the general principles with which we are familiar. The charter, or the general law under which they exercise their powers, is their constitution, in which they must be able to show authority for the acts they assume to perform. They have no inherent jurisdiction to make laws or adopt regulations of government; they are governments of enumerated powers, acting by a delegated authority; so that while the state legislature may exercise such powers of government coming within a proper designation of legislative power as are not expressly or impliedly prohibited, the local authorities can exercise those only which are expressly or impliedly conferred, and subject to such regulations or restrictions as are annexed to the grant." The class of powers referred to above as those impliedly conferred are those which are absolutely indispensable to the exercise of granted powers; not merely convenient or necessary to be exercised. Construction of authority. The universal doctrine prevails that the rule of strict construction applies to all statutes granting or attempting to grant powers to public corporations, especially municipal, and which involve the exercise of the power of taxation,1028 the incurring of indebtedness,1029 or the expenditure of 1028 Townsend Gas & Elec. Co. v. City of Port Townsend, 19 Wash. 407, 53 Pac. 551. See §§ 300 et seq., ante. 1029 Heilbron v. City of Cuthbert, 96 Ga. 312, 23 S. E. 206; Hay v. City of Springfield, 64 Ill. App. 671; City of Laporte v. Gamewell Fire Alarm Tel. Co., 146 Ind. 466, 45 N. E. 588, 35 L. R. A. 686; Burlington Water Co. v. Woodward, 49 Iowa, 58. An option for the purchase of a water plant is not an "incurring of indebtedness" within the constitutional limitation. Ludington Water-Supply Co. v. City of Ludington, 119 Mich. 480, 78 N. W. 558. A municipal grant for supplying water if valid when made is not defeated by subsequent legislation decreasing the amount of debt the city can incur. Daniels v. Long, 111 Mich. 562; Kiichli v. Minnesota Brush Elec. Co., 58 Minn. 418, 59 N. W. 1088; Lynchburg & R. St. R. Co. v. Dameron, 95 Va. 545, 28 S. E. 951; Spilman v. City of Parkersburg, 35 W. Va. 605, 14 S. E. 279; Ellinwood v. City of Reedsburg, 91 Wis. 131. But see Fergus Falls Water Co. v. City of Fergus Falls, 65 Fed. 586, where it is held that the grant of the power to contract for waterworks includes the right to pay for the same. State v. City of Great Falls, 19 Mont. 518, 49 Pac. 15. See § 140 et scq., ante. public moneys.1030 The reason for this rule has already been considered in the previous sections cited.1031 § 891. Mode of establishing municipal plant. The grant of authority to public corporations to secure a supply of water and light either for their own needs or that of private consumers should prescribe in definite and certain language the mode in which the authority is to be exercised and this is usually found to be the case.1032 These facilities may be authorized directly by the legislature which unquestionably has a very large degree of control over even local affairs, or the grant may be given by the legislature to particular corporations to be carried into effect, in these instances by either designated public officials or by them only after the affirmative action of voters at an election held in the manner and at the time prescribed.103 The manner of raising funds with which to carry out the enterprise should be left to the discretion of the taxpayers of a particular district upon whom the burden of taxation will fall. Power to purchase or erect. The existence of the authority to engage in the business of supplying water, light or other service is the essential condition and as a legal proposition it is immaterial whether the municipal corporation be given the right to erect its own plant or to purchase from private persons one already con 1030 Ampt v. City of Cincinnati, 56 Ohio St. 47, 46 N. E. 69, 35 L. R. A. 737. See §§ 410-417, and 455 et seq., ante. 1031 See, also, in addition to the cases referred to in the three preceding notes the following: Jacksonville Elec. Light Co. v. City of Jacksonville, 36 Fla. 229, 30 L. R. A. 540; City of Crawfordsville v. Braden, 130 Ind. 149, 14 L. R. A. 268; Citizens' Gaslight Co. v. Inhabitants of Wakefield, 161 Mass. 432, 31 L. R. A. 457; Mitchell v. City of Negaunee, 113 Mich. 359, 38 L. R. A. 157; Seitzinger v. Borough of Tamaqua, 187 Pa. 539, 41 Atl. 454; Smith v. City of Nashville, 88 Tenn. 464, 7 L. R. A. 469; Ellinwood v. City of Reedsburg, 91 Wis. 131, 64 N. W. 885. 1032 See §§ 455 et seq., ante. 1033 City of Harrodsburg v. Harrodsburg Water Co., 23 Ky. L. R. 956, 64 S. W. 658. A water supply contract must be ratified by the voters of the city. Citizens Gas Light Co. of Reading v. Inhabitants of Wakefield, 161 Mass. 432, 37 N. E. 444, 31 L. R. A. 457; George v. Wyandotte Elec. Light Co., 105 Mich. 1, 62 N. W. 985; Elyria Gas & Water Co. v. City of Elyria, 57 Ohio St. 374, 49 N. E. 335. See §§ 455 et seq., ante. structed and in operation.1034 The point to be observed in connection with the subject of this paragraph as well as all other sections in which the subject is considered, is that the statutory authority is to be strictly construed and literally followed.1035 § 892. Operation of plant. A municipal corporation when it engages in the business of manufacturing and supplying light or furnishing water either to its own self or private consumers, as already stated, exercises its business or proprietary powers and it follows, therefore, that those rules of construction with reference to the making and enforcement of contracts which apply as between private individuals will also apply here. The corporation will be liable in the same manner as private individuals engaged in a similar business, for the manufacture and sale of light and the furnishing of water to private consumers is a private business in all its characteristics and essentials and does not pertain in any manner to any of the functions of government. The soundness of this proposition is apparent when the question of charges is considered. Without doubt the charge for the commodity furnished should be sufficient to not only pay the cost of operation, expensive as it may be, but also enable the public authorities to pay the interest charges. resulting from the use of moneys in the construction of the plant, the expense of relaying or repairing pavements or improvements, 1034 Long Island Water Supply Co. v. City of Brooklyn, 166 U. S. 685. The condemnation of a water supply system is within the unquestioned limits of the power of eminent domain and the right is not taken away by a contract for the supply of water by a private company owning works during a term of years. Such a contract is property and, like any other property, may be taken under condemnation proceedings for public use. City Council of Montgomery Capital City Water Co., 92 Ala. 361, 9 So. 339; Spaulding v. Inhabitants of Peabody, 153 Mass. 129, 10 L. R. V. A. 397. Decided before authority 1035 Citizens' Gas Light Co. of Reading v. Inhabitants of Wakefield, 161 Mass. 432, 37 N. E. 444, 31 L. R. A. 457; Hudson Elec. Light Co. v. Inhabitants of Hudson, 163 Mass. 346, 40 N. E. 109. |