Mayo v. Town of Washington
| Decision Date | 08 March 1898 |
| Citation | 29 S.E. 343,122 N.C. 5 |
| Parties | MAYO v. TOWN OF WASHINGTON. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Beaufort county; Brown, Judge.
Action by H. B. Mayo against the town of Washington for an injunction. From a judgment for defendant, plaintiff appeals. Reversed, and writ granted.
Chas F. Warren, for appellee.
The defendant is a municipal corporation, containing a population of about 5,000 inhabitants. By its charter it was given the general powers incident to such corporations, in the following words: That the commissioners of the town of Washington (naming them), and their successors in office "be and they are hereby created a corporation and body politic under the name and title of the commissioners of the town of Washington, with full power to make by-laws not inconsistent with the constitution of the state or of the United States; to contract and be contracted with, to sue and be sued, to plead and be impleaded, by that name and title and they are hereby invested with all other powers and rights necessary or usually appertaining to municipal corporations." Priv. Laws 1846-47, c. 199, § 1. The defendant has undertaken under this corporate power to buy erect, and operate an electric light plant, for the purpose of lighting the public streets of the town of Washington, at a cost of $20,000, and to issue coupon bonds therefor, not to run more than 30 years, and not to bear interest at a greater rate that 6 per cent. per annum. The plaintiff, a citizen and taxpayer of the defendant town, for himself and in behalf of other citizens and taxpayers, denies the right of the defendant to create this bonded debt for the purposes proposed, and thus to burden the citizens and taxpayers of the town of Washington. This action is brought for the purpose of restraining and perpetually enjoining the defendant from creating such debt and from issuing said bonds. Upon the hearing below the court refused to issue the injunction prayed for, and the plaintiff appealed. The appeal was not argued orally in this court; but we find a signed agreement of counsel, asking that it be heard on printed briefs, in which it is stated that the plaintiff's counsel does not wish to file any brief, and has not done so. This is to be regretted, as the appeal involves the consideration of a most important question of constitutional law. But the well-considered brief of defendant's counsel treats the case fairly, and contends that there is but one question of law involved, and that is the constitutionality of the proposed indebtedness and issue of bonds. And that depends upon one question of fact: Is it one of the necessary expenses of the town?
The defendant contends that the case, as it is constituted in this court, does not involve the question as to whether the defendant could furnish incandescent lights to its individual citizens for pay, and, if this court should sustain the order of the court below, that this question would still remain undecided. This seems to us a little like hedging, as we know of no electric light plant in the state that does not sell incandescent lights to private parties, and we can hardly believe that the defendant would wish to go to this expense in erecting and operating an electric light plant in the town of Washington without this means of defraying a part of the expense of operating the same. But, as the defendant contends that it does not involve that question, we will treat it in that way. We agree with the defendant's counsel that there is but one question of law involved, and that is the power of the defendant to make the debt and issue the bonds; and this depends upon the fact whether an electric light plant, costing $20,000, is one of the necessary expenses of the town government. The defendant contends that it is, and cites several cases as sustaining this contention. The case of Tucker v. City of Raleigh, 75 N.C. 267, is cited for two purposes,--to prove that electric lights are a necessary expense, and that the admission of this fact by the defendant is binding on the court. In our opinion, it sustains neither contention. In that case, the facts admitted were that the debt sued on was money due for work performed on the streets, cleaning out wells, and the like. The court said: "These facts being admitted, we as a matter of law hold that the debt was for necessary expenses." In the case under consideration there is no dispute about facts. They are alleged by the plaintiff, and admitted by the defendant, as they were in Tucker v. City of Raleigh. And the defendant says, in its answer, that these facts show that to buy, establish, and operate this electric light plant is one of the necessary expenses of its government. The defendant's contention cannot be sustained, for two reasons: First. It is not an admission of the defendant that it is a necessary expense, but an allegation that it is. It is not alleged by the plaintiff that it is a necessary expense, and, not being alleged, it cannot be an admission. But, if the plaintiff had admitted that this debt, if created, would be for a necessary expense, it would be an agreement as to a result,--a conclusion, and not a fact,--and the court would not be bound by the admission. But, as this is an application for an injunction, this court has the right to review the court below on the facts. Jones v. Boyd, 80 N.C. 258. Brodnax v. Groom, 64 N.C. 244, is cited by the defendant as sustaining his contention. But in our opinion it does not. The subject of litigation in that case was to enjoin the collection of taxes levied under a special act of the legislature to build and repair bridges. There was no dispute but what the act authorized the levy, and the only question involved was as to whether it was constitutional or not, as the question was not submitted to a vote of the people. This fact, that it was not submitted to a vote of the people, made the constitutional question hinge upon the question as to whether building and repairing bridges was one of the necessary expenses of the county government, and the court held that it was. This is the only analogy that Brodnax v. Groom bears to the case under consideration. And it is so obvious that the building and repairing of bridges on the public highways of a county is a part of the necessary public expense of a county that we do not propose to discuss this question further. Evans v. Commissioners, 89 N.C. 154, is also cited by the defendant. But it is placed entirely on Brodnax v. Groom, and decides no more than that case does. Mauldin v. City Council of Greenville, 33 S.C. 1, 11 S.E. 434, is cited by defendant as sustaining its authority to create the debt and issue the bonds. We do not think it does, but that it sustains the contention of the plaintiff. There is no constitutional restriction in South Carolina, as there is in North Carolina, and the right of the defendant in that case depended upon its powers under its charter, and the court held that it had the power. The opinion is made largely of quotations from Judge Dillon, defining general corporate powers. Quoting from Judge Dillon, these powers are defined as follows: *** It is quite certain that such power is not essential to the declared objects and purposes of the corporation, for the city has heretofore been lighted by contract, without owning the gas fixtures." The first part of this quotation, down to "***," was quoted by the South Carolina court from Judge Dillon, and from there down is a part of the comment of the South Carolina court. As there was no constitutional restriction of the corporate power in South Carolina, it depended on their general corporate power to contract. They were not restricted, as the defendant is. In South Carolina the power of the defendant to lend the credit of the town and to issue bonds was not restricted to the necessary expenses of the corporation. In the charter of the defendant there are no express powers. It therefore has only such powers as necessarily pertain to or arise from the fact that it is a municipal corporation, and therefore falls under the third division of Judge Dillon's definition, which, he says, does not mean simply "convenient, but indispensable." And "any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation." This case was called to our attention by the defendant as sustaining its position. Lott v. Mayor, etc., of Waycross, 84 Ga. 681, 11 S.E. 558, is cited by the defendant. This case expressly states that it does not decide any constitutional question. The case bears a very slight analogy to ours, if it has any at all. That case is where the town of Waycross contracted with a company to furnish it with a certain number of electric lights at an agreed price per annum. The action was brought to enjoin the enforcement of this contract, for the reason that it was not submitted to a vote of the people. The court held that this did not involve any constitutional question; that if the contract was a reasonable one, and the annual rental was kept paid, the constitutional question might never arise. There is very little discussion of the case by the court, and we do not know what the constitutional provisions of Georgia are. But the case nowhere shows that the question of necessary expense was presented or considered by the court. The case of City of Crawfordsville v. Braden, 130 Ind. 149, 28 N.E. 849, is also cited...
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