CHAPTER IV

THE IMPLIED POWERS OF MUNICIPAL CORPORATIONS

THE principle of the implied powers of municipal corporations is therefore fully recognized by all our courts. Through the recognition of the existence of implied powers more than in any other way they have given effect to the purpose, and recognized the object, for which municipal corporations are established. The field is naturally a fertile one for judicial legislation and construction, and it has been freely exploited in giving effect to the powers necessary to a full enjoyment and a complete realization of the advantages of such corporations, to the end that the greatest public good might be attained. Decisions giving the most complete freedom of activity to municipalities, consistent with their best interests and not derogatory of specific statutory regulations, represent the great weight of authority. It is only a few of our courts that refuse the right of municipal corporations to keep abreast of the times and to conduct their affairs to their best advantage and for the greatest benefit of their citizens. In view of the fact that the sole purpose of such corporations in their capacity of business concerns is to benefit the people who inhabit them and thus constitute their stockholders, so to speak, it is submitted that the present advantage and the prospective advancement of these organizations should be the test of the control exercised over them by the legislature and the courts. The only other party even remotely concerned is that of the state and its interests must be identical with

those of the city. Since the interests of the two parties involved is the same it is only reasonable to suppose that the one party, in legislating for the other, intends always to accomplish the greatest good for the greatest number concerned.

Because of the many details and the varying circumstances of the different cities, only general legislation with reference to them is advisable or possible. This necessitates the exercise of much judgment by the cities, in whose officers must be vested a wide discretion. And in construing such general statutes in a particular case regard must be had for the facts and circumstances of the case in hand so that the general law as applied will give the best results. It is in determining the legislative intent and in giving such intention the most favorable application to the particular city of which it will admit, that the courts take the opportunity to advance the interests by extending the scope of the activity of such municipality as its welfare requires. And it is submitted that the authorities with very few exceptions do favor a decided increase of the sphere of municipal activity for the reason that the best interests. of these corporations demand it.

Under the doctrine of the implied powers of municipal corporations the decisions of the different cases extending their sphere of activity are based on one of three grounds. The first which is probably the most frequently invoked is that of the police power, whose application in this connection, as well as in others, is an excellent illustration of the pertinent remark by one of our courts that, "it may be said that it is known when and where it [the police power] begins, but not when and where it terminates.1 Another basis for these decisions which has been frequently given

1 Champer vs. City of Greencastle, 138 Ind., 339.

is that of the general welfare clause found in many city charters. This is often mentioned in connection with the third reason with which it is closely allied-that the purpose is public or municipal.

All three of these are sound reasons for the decisions of our courts, recognizing in municipal corporations additional powers on the theory that they are entitled to exercise powers" necessarily or fairly implied in or incident to powers expressly granted, or those essential to the declared objects and purposes of the corporation." It may seem that the police power is the least germane and definite because of its elasticity and of the very wide application which it is given as the reason for some decisions upon almost all subjects. It is, however, a valid basis for these decisions, for the furnishing of water, light, gas, and such public utilities to the individual inhabitants of cities concerns the protection of their health, life and property, which constitutes a duty of the municipality to its citizens. But naturally the public welfare clause of the charter or the fact that the purpose is a municipal one furnishes a basis for this line of decisions that is more peculiarly applicable than that of the police power.

Statutes expressly providing that municipal corporations may furnish such public utilities as electric light, water and gas for the private use of its citizens as well as for the city are universally upheld by all our courts as constitutional.1

In the case of Linn vs. Borough of Chambersburg,2 the court says: "The power of the legislature to authorize

1 Fallows vs. Walker, 39 Fed., 651; Opinion of the Justices, 150 Mass., 592; Mitchell vs. City of Negaunee, 113 Mich., 359; Norwich Gas & Electric Co. vs. Norwich, 76 Conn., 565; State ex rel. vs. City of Toledo, 48 Ohio St., 112.

2 160 Pa., 511.

municipal corporations to supply gas and water for municipal purposes, and for the use and benefit of such of their inhabitants as wish to use them and are willing to pay therefor at reasonable rates, has never been seriously questioned. In view of the fact that electricity is so rapidly coming into general use for illuminating streets, public and private buildings, dwellings, etc., why should there be any doubt as to the power to authorize such corporations to manufacture and supply it in like manner as artificial gas has been manufactured and supplied? It is a mistake to assume that municipal corporations should not keep abreast with the progress and improvements of the age."

Further the power of the municipality to provide these public utilities for the private use of its citizens is implied from the power to furnish such utilities for use upon its streets and in other public places in the absence of any express legislative authority by most of our courts. There are a few decisions it is true which refuse the city the right so to extend its sphere of activity and usefulness for the advantage of its citizens. The great weight of authority, however, and certainly the better reason permits this extension of power and favors an increase of the sphere of municipal activity.

The rule of law is well established to the effect that a city, in erecting gas, water or electric-light plants, is not limited to providing the service of such utilities for use only upon the streets and in other public places of the city, but that it may in connection therewith furnish the same for the private use of its citizens. Some of our courts have even held that it is the duty of the municipality not only to light its streets and public places but to furnish its inhabitants with the means of obtaining light at their own expense.1

1 City of Newport vs. Newport Light Co., 84 Ky., 166.

In view of this diversity of opinion of the authorities and the recent date of the decisions which make it impossible to speak of the doctrine as finally accepted by all our courts, it has been thought best to set out somewhat at length some of the decisions together with the grounds upon which they are based so that the authority may appear for the position herein taken-that our courts favor an increase of the sphere of municipal activity.

The case of Thompson Houston Electric Co. vs. City of Newton,1 decided in 1890, was an action to enjoin the defendant, City of Newton, Iowa, from purchasing and operating an electric-light plant, and furnishing light for the streets and public places of said city and for the private use of its inhabitants. The only statutory authority given the city provided that it might "establish and maintain gasworks or electric-light plants, with all the necessary poles, wires, burners and other requisites of said gasworks or electric-light plants." Section 2 of the same act made the statutory authority for the erection and maintenance of gasworks and electric-light plants the same as that applicable to waterworks.2 The court in defining the powers of the city under this statute says that: "It is also urged that the city has only the authority to erect an electric plant for the purpose of lighting the streets and public places of the city, and is not authorized to furnish lights for use in the houses and stores of its citizens. The act of the general assembly giving the right to cities to erect, or to authorize the erection of electric plants, makes no distinction between lights used for public or private purposes; and the right of the city in the erection of its own plant is not limited in any other way than is the right of a company authorized by

142 Fed.,723.

2 Acts 22d General Assembly, Iowa, p. 16.