ment made in this case to the effect that the inhabitants as well as the city were to be supplied with water and electricity, this would seem to have been intended, from a remark found in connection with the statement of the facts of the case that, " this ordinance further provides that all revenue arising from the operation of the waterworks and light plant should be applied first to the expenses of their operation, etc." 1

Among the more recent cases permitting cities to provide their citizens with electric light in their private capacity in the absence of any express legislative authority is that of Fawcett vs. Mt. Airy,2 decided in 1903. This case argues the question in issue at length, and indicates the favorable attitude which is taken towards increasing the opportunities for cities to serve their citizens with the comforts and pleasures as well as the necessities of life. It also shows that our courts recognize the fact that with the advance of civilization the increase of population and its congestion in municipalities, making competition more keen and living more strenuous, what were at one time regarded as luxuries become comforts and are later looked upon as necessities. The case also criticises the Massachusetts court for refusing to imply this power in municipalities to provide its citizens with these public utilities although it had held the purchase by them of town clocks, scales, etc., to be a necessary expense. Because of its importance, we quote it at considerable length. "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

1 See also Mayor, etc., of Rome vs. Cabot, 28 Ga., 50.

2 134 N. C., 125.

for decision. Indebtedness incurred 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 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 consequence is that, as municipalities grow 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 expected, 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 extravagance 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. . .. 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. . . . . . If the matter of lighting is a necessary expense, then how and in what manner the city shall furnish such lighting is with the authorities of the city or town to determine. . . . 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.

. .

The provision of an adequate water supply for the use of the city and its inhabitants is directly concerned with its health in addition to being a municipal purpose and for the general welfare. This public utility has always been recognized as necessary for the public health and convenience and the authorities agree that it is the duty of the city to provide a water supply for protection against fire. That an adequate supply of pure water for the citizens of a large city is a necessity which can be provided only by a responsible public or quasi-public corporation is generally admitted. As compared with electricity, the question of a water supply is much older and the law, permitting cities to furnish water from their own plant to their citizens along with providing for the public wants, has become firmly established. In practice it seems to have been very generally assumed that the erection and operation of a water-works system is a municipal purpose and that the city is expected to furnish it for private use along with attending to the public demand. The courts have recognized the economy of doing this as well as the fact that it tends to the protection of health, life, and property and is therefore a legitimate exercise of the police power.2

1 This case was followed in Greensboro vs. Scott, 138 N. C., 181, decided in 1905; see also Wadsworth vs. Concord, 133 N. C., 587.

2 Cooley, Taxation, p. 217.

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A good case expressing the law of this subject is that of Smith vs. Nashville,' where the only statute in point gave the mayor and city council the power "to provide the city with water by waterworks, within or beyond the boundaries of the city, and to provide for the prevention and extinguishment of fires, and to organize and establish fire companies." In the course of its well reasoned decision the court says: It is seen at once that the waterworks are corporate property; that is not denied. The debate is with respect to the nature of the use. As to that, for the sake of convenience we divide all the purposes for which the city furnishes water into three classes: (1) to extinguish fires and sprinkle the streets; (2) to supply citizens of the city; (3) to supply persons and factories adjacent to but beyond the corporate limits.

If the business were confined to the first class, there would be no ground to base a discussion upon, so clearly would the use be exclusively for public advantage. We think there can be but little more doubt about the second class, especially in view of certain words in the city charter, to which we will advert presently. Nothing should be of greater concern to a municipal corporation than the preservation of the good health of the inhabitants; nothing can be more conducive to that end than a regular and sufficient supply of wholesome water, which common observation teaches all men can be furnished, in a populous city, only through the instrumentality of well equipped waterworks. Hence for a city to meet such a demand is to perform a public act and confer a public blessing. It is not a strictly governmental or municipal function, which every municipality is under legal obligation to assume and perform,

188 Tenn., 464.

2 Acts 43d General Assembly, Tennessee, p. 147.

but it is very close akin to it, and should always be recognized as within the scope of its authority, unless excluded by positive law. Here the first clause [of the statute quoted supra], to provide the city with water by waterworks' is very broad and comprehensive, and was obviously intended to authorize the corporation to furnish the inhabitants of the city with water. Having accepted the charter and undertaken to exercise this authority in the manner detailed by the witness, it cannot be held that the city, in doing so, is engaging in a private enterprise or performing a municipal function for a private end."

As to the power of a city to supply parties with water beyond its boundaries this Tennessee case is supplemented by that of Lawrence vs. Methuen1 where an injunction to prevent this was refused. In order to show the friendly attitude of this court toward cities as business concerns we quote from the decision as follows: "In practice it must often be a great convenience for persons owning and occupying land extending across the boundary line between two municipalities to take water from one or the other for use on the whole land; and to compel such persons to distinguish between the parts of the premises in each municipality on which the water is used, and to confine the use of the water to the part within the municipality from whose works the water is taken, would impose artificial restraints upon such owners in the use of property which could be justified only by language clearly expressing an intention to accomplish such a result, and we find no such language in St. 1892, c. 310."

These authorities, then, will serve to support the principle so far as it is based on the doctrine of implied powers that our courts, for one or more of the three valid reasons above

1 166 Mass., 206.