New England are peculiar in that power must be given them expressly and that money can be raised by taxation only for purposes expressed in the statute or incidental to such purposes.1 With this in mind it will be seen that the case just mentioned is not applicable to, or binding on, our courts generally for an examination of our city charters will disclose no attempt at such detailed legislation as was found binding on this particular court.

It is of interest to note that after this decision was handed down, January 12, 1891, the Legislature promptly acted upon the suggestion made in the case, and passed a general act, which was approved June 4, 1891, giving any city or town the power to construct, purchase or lease, and maintain within its limits one or more plants for the manufacture and distribution of gas or electricity for furnishing light for the municipal use, or light, heat or power, except for the operation of electric cars, for the use of its inhabitants. This act was passed pursuant to the Opinion of the Justices, rendered May 27, 1890, in which the court, in response to the question propounded to it by the Legislature, stated that it was within the province of that body to confer upon towns and cities the power to manufacture and distribute gas or electricity for the use of their inhabitants.

The appellate court of Illinois in Village of Ladd vs. Jones, decided in 1895, in refusing recovery for electric lighting furnished under an ordinance by the plaintiff city to one of its inhabitants for private use, took the position that such city acted without authority in furnishing such light because such power had not been expressly granted

1 Dillon, Municipal Corporations, sec. 30. 2 Statutes, Massachusetts, 1891, c. 370.

8 150 Mass., 592.

461 Ill. App., 584.

to it, and expressed itself to the effect that, "powers granted to cities and villages by Legislative grant must be strictly construed." It is to be regretted that the case is not discussed more at length so that the reason for the decision might more clearly appear, and also that this question has not been passed upon by the supreme court of the State. In the case of Blanchard vs. Village of Benton,1 this same court in 1903 indicates that it is still of the opinion expressed in the former case.

The Supreme Court of New Jersey in Howell vs. Millville,2 decided in 1896, even denies that an act "authorizing the lighting of public streets, and places in the cities, towns, townships, boroughs, and villages of the State and to erect and maintain the proper appliances, etc.," gives the power to a municipality to erect and maintain an electric-light plant to light its streets. It is submitted that in view of this express statute the case in refusing to find auhority for the city to erect and maintain an electric-light plant, for supplying the public wants, is unsound in its reasoning and so narrow in its construction as not only to fail to give effect to the intention of the legislature, but virtually to annul the enactment. The case is unsupported by authorities and does not represent the attitude of our courts outside of the particular jurisdiction.

3

Finally a California case decided in February, 1906, Hyatt vs. Williams, also refuses to accept the doctrine of implied powers in this connection. It says: "The terms of the express grant of the power to provide light for the public purposes named do not indicate any intention to give the distinct and larger power to establish a plan for furnishing light for private use to all the inhabitants of the city who 2 60 N. J. L., 95.

1 109 Ill. App., 569.

3 84 Pac., 41.

may desire it, and no such intention can be imputed to the framers of the charter from the language there employed. . . . The question whether or not, if the city had erected or should erect a plant to supply electric light for the public streets, public places, and public buildings, it would have power to distribute any surplus thereof to the inhabitants for private use does not arise in the case." In the course of this rather arbitrary decision the court unfortunately speaks only very briefly of the reasons for holding that the power of the municipality must be so limited; and no case is discussed or even cited and no authority whatever is referred to except the general definition of the powers of municipal corporations formulated by Judge Dillon over forty years before and probably twenty years before electricity was thought of for lighting purposes as it is now enjoyed.

CHAPTER V

WHAT ARE MUNICIPAL PURPOSES WITHIN THE MEANING OF THE CONSTITUTION

THE attitude of our courts in their construction of constitutional limitations on powers vested in cities by statutory enactment when such authority is attacked on the theory that the expenditure of money in carrying out such powers would be illegal and beyond the powers of municipalities also favors an increase of the sphere of municipal activity. This line of decisions is not concerned with the doctrine of the implied powers of municipal corporations but with construing their statutory powers within the meaning of the Constitution in order to determine what are municipal purposes for the support of which the people may be required to pay by taxation. Although any abuse of authority which causes the imposition of taxation without right has been jealously guarded against by our courts as a violation of one of the very first and most fundamental of principles since the day of Magna Charta, it is submitted the authorities show that our courts have been very liberal in extending the meaning of the term, municipal purpose," so as to permit our cities promptly to take advantage of new inventions and modern conveniences for their inhabitants.

66

The case of Hequembourg vs. City of Dunkirk,' decided in 1888, was an action to enjoin the defendant city from constructing an electric-light plant. The question decided by this case is whether the issuing of bonds to establish an 149 Hun, 550.

44

[44

electric-light system for the purpose of supplying the said city and its inhabitants with electricity is in violation of article 8, section II of the Constitution, which provides that "no county, city, town or village shall hereafter give any money, . . . nor shall any such county, city, town or village be allowed to incur any indebtedness, except for county, city, town or village purposes." In refusing to enjoin the erection of the plant the court held that furnishing electricity for the private use of the citizens was the performance of a municipal purpose when done in connection with the ownership and operation of the plant for supplying the public needs of the city, saying in part: “We think it may safely be assumed that the lighting of the streets and public places is one of the duties devolving upon the municipal government, and is a city purpose within the provisions of the Constitution. What is and what is not a municipal purpose is, in many cases, doubtful and uncertain, and it is the duty of the courts in such cases to give weight to the legislative determination and not to annul its acts, unless it clearly appears that the act was not authorized. . . . If we are correct in this view, we fail to see why gas or electric light works may not be sanctioned on the same theory. The lighting of the streets by gas involves the necessity of laying mains through the streets, with which the lamps may be supplied with gas; and, in lighting by electricity, the stringing of wires or the laying of conduits, through which the electricity may be conveyed. Light in dwellings is as important and essential as upon the streets, and promotes the general comfort, safety and welfare of the inhabitants; and when it is supplied in connection with that which is furnished by the municipality, under its duty to the public, we think it may be regarded as an incident thereto, and one of the purposes for which the municipality may properly contract.”