Overall v. City of Madisonville

• Decision Date: 15 May 1907
• Parties: OVERALL v. CITY OF MADISONVILLE.
• Court: Kentucky Court of Appeals

102 S.W. 278

125 Ky. 684

OVERALL v. CITY OF MADISONVILLE.

Court of Appeals of Kentucky.

May 15, 1907

Appeal from Circuit Court, Hopkins County.

"To be officially reported."

Suit by Richard W. Overall against the city of Madisonville. From a judgment for defendant, plaintiff appeals. Affirmed.

Laffoon & Yost, Gordon, Gordon & Cox, and Waddill & Dempsey, for appellant.

Jonson & Jennings, for appellee.

O'REAR C.J.

Madisonville is a city of the fourth class. Being out of debt, its city council desired to install a municipal lighting plant, to light the streets and public places of the city, as well as to furnish electric lights to its inhabitants. The plant was to cost about $27,000, exclusive of lot and building. The revenues and income of the city were alleged to be less than $27,000 a year. The council advertised for bids for machinery, poles, wires, and work necessary to erect and install the plant. Bids were submitted separately for poles and for machinery set up and connected, for wires put up for incandescent lighting, and for wires put up and connected for arc lighting. The bids were accepted--that is, they were approved as the lowest and best bids--but the contracts were not then let, but were later completed at different times running through the year. This suit is by a taxpayer to enjoin the execution of the contracts upon the ground that they are void as being in contravention of the constitutional prohibition against the city's becoming indebted in any year in excess of its revenues for that year. The circuit court refused the injunction, and dismissed the petition. Hence this appeal.

The principal questions for decision are: (1) Has a city of the fourth class the power to install and own its own lighting plant, to be operated both to light the public places of the city, and to furnish lights to its inhabitants as a commercial enterprise? (2) What constitutes the "revenues and income" of the city for the year. And (3) What is an "indebtedness," in the meaning of section 157 of the Constitution? There are other and minor questions presented which will also be noticed.

Section 157 of the Constitution, in part, provides: "No county city, town, taxing district, or other municipality shall be authorized or permitted to become indebted, in any manner or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year, without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose; and any indebtedness contracted in violation of this section shall be void. Nor shall such contract be enforceable by the person with whom made; nor shall such municipality ever be authorized to assume the same." Public ownership of public utilities has been a political as well as a legal question for quite a while. It seems to have been a political question long before its legality was doubted. We read that Hezekiah, king of Judea, established and maintained by public authority a city waterworks plant in the city of David. 2 Kings, c. 20, verse 20. And who has not heard of the famous public baths of ancient Rome? The public lighting of the streets of cities is of modern origin. Yet the necessity for lights in a city is scarcely less now than its necessity for water. Indeed, private wells and cisterns, and resort to natural streams by individuals for their necessary water, could as easily dispense with public waterworks, and more justly perhaps, than could private property owners light the adjacent streets and public places. It is found that light is not only essential to the safety of travelers to prevent their coming in contact with obstructions, but they perform a most valuable office in preventing crime. It is known that crime thrives best in darkness. A good light is the equivalent of a good policeman in preventing certain forms of crime. It is therefore universally held now that it is clearly within the police power of cities, even without express authority, to provide public lighting of their streets at the public expense. Crawfordsville v. Braden, 130 Ind. 149, 28 N.E. 849, 14 L.R.A. 268, 30 Am.St.Rep. 214; Mauldin v. City of Greenville, 33 S.C. 1, 11 S.E. 434, 8 L.R.A. 291; Ellinwood v. Reedsburg, 91 Wis. 131, 64 N.W. 885; Heilbron v. Cuthbert, 96 Ga. 312, 23 S.E. 206. Where a city is given the power, either expressly or by necessary implication as an incident to its police power, to light its streets, and where the precise method is not expressly provided, it may either hire another to furnish the lights, or may furnish its own lights. The power to do the thing unreservedly gives the city the discretion in the choice of means it will adopt. Mauldin v. City of Greenville, 33 S.C. 1, 11 S.E. 434, 8 L.R.A. 291; Smith's Mun. Corp. § 881; Henderson v. Young, 119 Ky. 224, 83 S.W. 583; Jacksonville Electric Light Co. v. Jacksonville, 36 Fla. 229, 18 So. 677, 30 L.R.A. 540, 51 Am.St.Rep. 24; Smith v. City of Nashville, 88 Tenn. 464, 12 S.W. 924, 7 L.R.A. 469; Bridgeport v. Housatonic R. R. Co., 15 Conn. 475; Crawfordsville v. Braden, 130 Ind. 149, 28 N.E. 849, 14 L.R.A. 268, 30 Am.St.Rep. 214.

Cities of the fourth class of this state are granted power (section 3490, subsec. 10, Ky. St. 1903 [Carroll's Ed.]): "To provide for the lighting of the streets, market houses and other public buildings, rooms and offices, with gas, or in any other manner." By an act approved March 24, 1894 which is an amendment to their charters (section 3580, Ky. St. 1903 [Carroll's Ed.]), cities of the fourth class are permitted to establish boards of public works. The section, however, concludes: "Where no board of public works has been established, the duties herein imposed shall be performed by the council and such other employés and agents as said council may elect or designate." By other sections of the act the authorities and powers of the board are declared. It is given especial control of the construction, repairing, and cleaning of streets, "and the lighting of all such public places as may be deemed necessary within the corporation." It is also given "exclusive control over such works as the city may own for supplying the city or the inhabitants thereof with water, light, heat or power, and shall have exclusive power to build, construct, equip, control, manage and operate any works the city may hereafter determine to own or construct for supplying the city or the inhabitants thereof with water, light, heat or power." These provisions are either an express grant of power to the cities (and we incline strongly to that view), or are a legislative construction of the extent of the powers already conferred in the general welfare clause (section 3490, subsec. 33, Ky. St. 1903) and in subsection 10, of section 3490, Ky. St. 1903, supra, the authority is here expressly conferred upon the council to contract for, and to construct and operate, a lighting plant to light the public streets and places, and to furnish lights to the inhabitants of the city. Whether a municipal corporation, an arm, as it were, of the state government, set up for governmental purposes only, ought to be privileged to engage in a purely commercial business, is a question of politics as well as, perhaps, of constitutional power. It involves the requiring of every citizen, who is a taxpayer, to contribute to the enterprise, to become a member of it in a sense, whether he wills to or not. Whether it is a governmental function to embark the public revenues in a commercial enterprise in order to cheapen a commodity of very common use, or which is even a necessity, may be a disputable question; but there is no doubt that the lighting of the public streets and places is a purely governmental matter. If the municipality may build and operate its own light plant for that purpose, and it may, it ought to be permitted to sell the surplus of its product as it would be to sell any of the horses bought for its fire department when they were no longer needed in the public service, or to sell anything else it rightfully had, but had no further use for. So it is now held that they may sell such surplus property or products. City of Henderson v. Young, 119 Ky. 224, 83 S.W. 583; Rogers v. City of Wickliffe, 94 S.W. 24, 29 Ky. Law Rep. 587; Pike's Peak Power Co. v. City of Colorado Springs, 105 F. 1, 44 C.C.A. 333. It is true the courts generally rest their decisions as to the power of the municipality to produce and sell lights to its citizens as well as to furnish its own, upon the theory of the dual nature of a municipal government, in which it is part public and part private. This distinction, though, is rapidly disappearing, and exists now perhaps more as a fiction of the law than as a fact. Towns are now organized for governmental purposes only, no longer for the enjoyment of exceptional privileges granted as a favor by the sovereign. They levy taxes for governmental purposes, and can levy them for none other. Hence any expenditure of the public money must be in furtherance of a public benefit in its nature governmental. In this state a great many towns and...