Fawcett v. Town of Mt. Airy

• Decision Date: 19 December 1903
• Citation: 45 S.E. 1029,134 N.C. 125
• Parties: FAWCETT et al. v. TOWN OF MT. AIRY.
• Court: North Carolina Supreme Court

45 S.E. 1029

134 N.C. 125

FAWCETT et al. v. TOWN OF MT. AIRY.

Supreme Court of North Carolina

December 19, 1903

Appeal from Superior Court, Surry County; McNeill, Judge.

Suit by Thomas Fawcett and others against the town of Mt. Airy. Decree for plaintiffs, and defendant appeals. Reversed.

S. P Graves, for appellant.

Carter & Lewellyn, for appellees.

MONTGOMERY J.

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 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 only in cases where counties, cities, or towns undertake to contract debts or pledge their faith, or loan their credit or levy taxes except for the necessary expenses thereof, that the submission of the proposition must be made to a vote of the qualified voters of such county, city, or town. Wilson v Commissioners, 74 N.C. 748; Tucker v Commissioners, 75 N.C. 274. 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. On this subject this court, in Wilson v. Commissioners, supra, uses the following instructive and suggestive language: "The analogy of the law of necessaries for infants is the only one that occurs to us. It is held that if, considering the means and station of life of the infant, the articles sold to him may be necessaries under any circumstances, they come within a class for which the infant may be liable, and, upon his refusal to pay, it is for a jury to determine whether, under the actual circumstances, they were necessary. If, however, the articles are merely ornamental, and such as cannot under any circumstances be necessary to one of the means and station of the infant, the court may, as a matter of law, declare that the infant is not liable. We do not undertake to say that this analogy will furnish a rule which will admit of a close application. But if treated merely as an analogy in the absence of other guides, it may be of some general use." It seems strange that it should be declared by some of our courts of highest reputation that the purchase of a town clock or hay scales or a pump is a necessary expense, when the supply of light to enable its citizens to walk its streets in security, or a supply of wholesome water to prevent disease and suffering, should be held as not a necessary expense. It is pretty generally held by the courts that the expense incurred for the widening of streets is a necessary expense; that a market house is a necessary expense; and, surely, if that be sound law, the courts ought to hesitate before they would pronounce a debt incurred for the furnishing of light and water not to be a necessary expense. And it seems to us that it may be reasonably considered as certain that the words "necessary expense" do not mean expenses incurred or to be incurred for purposes or objects that are only for the procurement or maintenance of things absolutely essential to the existence of the municipality. The expenditure of money for the...