Asburt v. Town Of Albemarle
| Decision Date | 13 May 1913 |
| Citation | 78 S.E. 146,162 N.C. 247 |
| Court | North Carolina Supreme Court |
| Parties | ASBURT et al. v. TOWN OF ALBEMARLE. |
1. Waters and Water Courses (§ 182*)— Municipal Water Supply — Mandatory Statute.
The Battle Act (Pub. Laws 1911, c. 86) enabling towns to construct and maintain waterworks, but requiring them, before constructing a public system, to acquire by purchase or condemnation any system of like character already constructed by any private or quasi public corporation, then in active operation and serving the public, is mandatory and not directory in its terms, leaving no discretion to the municipal authorities, and is also in derogation of the usual and common rights of municipalities, in the exercise of a sound discretion, to construct and purchase, as well as maintain, their public utilities.
[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 267; Dec. Dig. § 182.*]
2. Statutes (§ 239*) — Construction — Statutes in Derogation of Common Rights.
Statutes in derogation of common rights or offering special privileges are to be construed liberally in favor of the public and strictly against those specially favored.
[Ed. Note.—For other cases, see Statutes, Cent. Dig. § 320; Dec. Dig. § 239.*]
3. Statutes (§ 235*)—Construction—Mandatory Statute.
A statute mandatory in its terms must be strictly construed.
[Ed. Note.—For other cases, see Statutes, Cent. Dig. § 316; Dec. Dig. § 235.*]
4. Statutes (§ 188*)—Construction—Words of Definite and Well-Known Sense.
Words of definite and well-known sense in the law are to be expounded in the same sense when used in the statute.
5. Statutes (§ 190*) —Construction —Judicial Authority and Duty—Ambiguity.
There can be no construction of a statute where there is no ambiguity, and, if the language used is clear and admits of but one meaning, it should be taken to mean what the Legislature has plainly expressed; and any departure by the courts from the language so used would be an unjustifiable assumption of legislative power.
[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 266, 269; Dec. Dig. § 190.*]
6. Waters and Water Courses (§ 183*)— Municipal Water Supply — Statutes — "Private Corporation" — "Quasi Public Corporation" — "Company" — "Corporation"—"Partnership."
The Battle Act (Pub. Laws 1911, c. 86), enabling towns to construct and maintain waterworks, but requiring them before constructing any public system to acquire by purchase or condemnation any system of like character already constructed by any "private corporation" or "quasi public corporation, " was not intended to embrace works constructed by a single individual or a "partnership, " which is a contract between private individuals for the purpose of trade or gain; the word "corporation" does not include a "partnership" or unincorporated association of individuals, while the word "company" has no such technical and legal meaning as the word "corporation, " but is a generic and comprehensive word which may include individuals, partnerships, and corporations.
[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. §§ 277, 278; Dec. Dig. § 183.*
For other definitions, see Words and Phrases, vol. 2, pp. 1347-1350, 1608-1621; vol. 8, pp. 7619, 7620; vol. 6, pp. 5191-5202; vol. 8, pp. 7746, 7747; vol. 6, pp. 5571, 5572; vol. 8, p. 7763; vol. 7, p. 5886; vol. 8, p. 7777.]
7. Waters and Water Courses (§ 183*)— Municipal Water Supply—Statutes—Acquisition of Private System—"In Active Operation Serving the Public."
The Battle Act (Pub. Laws 1911, c. 86), enabling towns to construct and maintain waterworks, requires them, before constructing any public system, to acquire by purchase or condemnation any system of like character constructed by any private or quasi public corporation, then in active operation, serving the public. In an action by the owner of a private system of waterworks to enjoin a town from constructing a municipal waterworks until it had acquired his system, it appeared that the average daily capacity of his plant was only 15, 000 gallons; that during the dry season it furnished water only from 6 a. m. to from 12 to 2 p. m.; that he had only 185 customers in the town; that there were 240 other families un-supplied; that he had only one tank of 1, 000-gallon capacity, and furnished no more than one-third of the business houses and no water for fire purposes; that the pipes of the system were so small as to be useless for fire protection and worthless in the construction of a new plant; and that as a part of the proposed system of waterworks it would be of no value to the town. Held, in view of the fact that the town was about to install a plant with a 100, 000-gallon tank and a capacity of three-fourths of a million gallons a day, that the plaintiffs'system was not "in active operation serving the public, " and that the act did not require the purchase of such a plant as that owned by the plaintiff.
[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. §§ 277, 278; Dec. Dig. § 183.2-*]
8. Municipal Corporations (§ 323*)—Municipal Water Supply — Acquisition of Private System—Injunction—Admissibility of Evidence.
In an action by the owner of a private water system to enjoin defendant town from constructing a public water system without acquiring plaintiffs' system, as required by Pub. Laws 1911, c. 86, evidence that no part of the system belonging to the plaintiff could have been used by the town as a part of its proposed system, and that as a part of such system it would have no value, was admissible.
[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 842-846; Dec. Dig. § 323.*]
9. Municipal Corporations (§ 861*)—Public Utilities — Constitutional Provisions — "Necessary Expenses."
Under the constitutional provisions recognizing municipal corporations and giving the Legislature power to create them, and conferring upon them the right to provide for their necessary expense, waterworks, sewerage, and other public utilities are "necessary expenses."
[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1819-1823; Dec. Dig. § 861.*
For other definitions, see Words and Phrases, vol. 5, pp. 4715, 4716.]
10. Municipal Corporations (§ 70*)—Legislative Control—Municipal Water Supply — Acquisition of Private System — Constitutionality of Statute.
The Battle Act (Pub. Laws 1911, c. 86), enabling towns to construct and maintain public water systems, but requiring them, before construction of any public system, to acquire by purchase or condemnation any system of like character already constructed by any private or quasi public corporation then in active operation and serving the public, is unconstitutional as an invasion of the principle of local self-government which requires that the control of such utilities be left to the sound discretion of the municipal authorities.
[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 170-174; Dec. Dig. § 70.*]
11. Municipal Cobpobations (§ 57*) — Nature and Status as Corporations—Public and Private Character.
Municipal corporations possess a double character, one governmental, legislative, or public, in which character it exercises political powers on behalf of the state, and the other private, in which character its powers are conferred primarily for the benefit of the corporation.
[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 144, 148; Dec. Dig. § 57.*]
12. Municipal Corporations (§ 64*)—Legislative Control — Governmental Matters.
In matters governmental, a municipal corporation is under the absolute control of the Legislature; but, as to its private or proprietary functions, the Legislature is under the same constitutional restraints that are placed upon it with respect to private corporations.
[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 156, 157; Dec. Dig. § 64.*]
13. Municipal Corporations (§ 57*)—Governmental or Corporate Powers—Providing Public Utilities.
Local conveniences and public utilities, like water and light, are not provided by municipal corporations in their governmental capacity, but in the quasi private capacity in which they act for the benefit of citizens alone.
[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 144, 148; Dec. Dig. § 57.*]
14. Municipal Cobporations (§ 70*)—Legislative Control — Public Improvements Not Governmental in Character.
A town cannot be compelled by the Legislature to undertake public improvements not governmental in character.
[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 170-174; Dec. Dig. § 70.*]
Appeal from Superior Court, Stanly County; Cooke, Judge.
Action for an injunction by E. M. Asbury and others against the Town of Albemarle. Judgment for plaintiffs, and defendant appeals. Reversed, motion to nonsuit allowed, and action dismissed.
Civil action brought to restrain defendants from proceeding with the construction of municipal waterworks in the town of Albemarle. Motion to nonsuit was overruled. Certain issues were submitted to a jury, and under the instructions of the court found for plaintiffs. The court rendered judgment that the defendant commissioners "be, and each of them, peremptorily commanded and directed to proceed forthwith to acquire the waterworks system or plant of the plaintiffs described in the complaint in the manner provided by chapter 86, Public Laws of 1911, " etc. The defendant appealed.
R. L. Smith, of Albemarle, and Manly, Hendren & Womble, of Winston-Salem, for appellant.
J. R. Price and R. L. Brown, both of Albemarle, and Burwell & Cansler, of Charlotte, for appellees.
BROWN, J. Chapter 86, Public Laws 1911, among other things provides that: "Whenever any incorporated town or city which under this or by special act has been or may be authorized from the sale of bonds or otherwise to build,...
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