Edenton Ice & Cold Storage Co. v. Town of Plymouth
|134 S.E. 449,192 N.C. 180
|22 September 1926
|EDENTON ICE & COLD STORAGE CO. v. TOWN OF PLYMOUTH et al.
|United States State Supreme Court of North Carolina
Appeal from Superior Court, Washington County; Grady, Judge.
Suit by the Edenton Ice & Cold Storage Company against the Town of Plymouth and others for an injunction. From a judgment for defendants, plaintiff appeals. Affirmed.
The plaintiff, having its principal office in Edenton, Chowan county, is a corporation organized under the laws of North Carolina and engaged in the manufacture and sale of ice. The town of Plymouth is a municipal corporation in the county of Washington. H. V. Austin is the mayor, and C. McGowan is a member of the board of commissioners.
The plaintiff brought suit in the superior court of Washington county to enjoin the town of Plymouth and its agents from selling ice outside the corporate limits of the town as well as within the corporate limits for the purpose of effecting resales in other territory. The substantial allegations are that for about 30 years the plaintiff has been engaged in the business of selling ice in several towns and villages in Washington and Tyrrell counties, other than Plymouth, and is now able to furnish a quantity sufficient for the needs of these places; that for a number of years the defendant corporation has manufactured ice and sold it to the inhabitants of the town; that during the summer of 1926 it sold and has since continued to sell its manufactured product outside the town and within the area covered by the plaintiff's sales in competition with the plaintiff and without authority of law. It is further alleged that the plaintiff is a private corporation, paying an income franchise, privilege, and ad valorem tax, while said defendant is exempt from taxation and is supported by the taxation of its inhabitants; that the municipality conducts a private enterprise; that its acts are ultra vires constituting an invasion of the plaintiff's rights and causing it irreparable damage. The allegations in the complaint are supported by affidavits of J. H. Conger manager of the plaintiff.
The defendants' affidavits tend to show that the town of Plymouth owns an electric light, water, and ice plant, which is operated as an inseparable unit, each unit depending upon the others for the successful and economical operation of the plant and no department engaging exclusively in the manufacture of ice; that the revenue derived from the sale of ice is necessary to the maintenance of the plant, the light and water departments not being self-sustaining; that the town does not sell ice outside its corporate limits or attempt to control such sale. There is no other ice plant in the town.
Upon consideration of the complaint and the affidavits the trial court dissolved the restraining order, and the plaintiff excepted and appealed.
W. D Pruden, of Edenton, for appellant.
Zeb Vance Norman, of Plymouth, for appellees.
The basis of the plaintiff's demand for equitable relief is the allegation that the town of Plymouth, through the agency of its codefendants, is directly or indirectly engaged in the business of selling ice outside its corporate limits without authority of law, to the irreparable injury of the plaintiff. In reference to this allegation the presiding judge by consent of all parties found and in substance set out in his order the following facts: The principal defendant is a municipal corporation owning a public utilities plant; all the machinery is propelled by the same power and all the departments are under the same management; the town manufactures and sells to its citizens at rates fixed by the board of commissioners both ice and electricity; it has no board of public works, but its governmental functions are under the direction of a board of commissioners, which is the governing body of the town; the defendant McGowan is a member of this board and is privately engaged in the business of buying and selling ice; he buys ice from the town plant at the prescribed rates, loads it on trucks, and then carries it away and sells it to his customers in various places outside the corporate limits of Plymouth.
The plaintiff, insisting that the restraining order should have been continued to the hearing, first rests its argument on the proposition that the defendant has no legal right as a municipal corporation to engage in the business of manufacturing ice; that municipal corporations have only such powers as are expressly granted or necessarily implied; that the record does not reveal the express grant to the defendant of any such authority; and further, that the manufacture of ice is neither a governmental nor a municipal function and that such power is therefore not implied. This position raises a question as to which there is diversity of opinion. Some of the authorities...
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Donovan Const. Co. v. City of Waterloo
......447 (67 L.Ed. 1078, 1085, 43 S.Ct. 597); Edenton I. & C. S. Co. v. Town of Plymouth,. 192 N.C. 180 (134 ......