Posey v. Town of North Birmingham

• Decision Date: 28 November 1907
• Citation: 154 Ala. 511,45 So. 663
• Parties: POSEY v. TOWN OF NORTH BIRMINGHAM.
• Court: Alabama Supreme Court

45 So. 663

154 Ala. 511

POSEY v. TOWN OF NORTH BIRMINGHAM.

Supreme Court of Alabama

November 28, 1907

Rehearing Denied Feb. 6, 1908.

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by Samuel R. Posey against the town of North Birmingham. From a judgment for defendant, plaintiff appeals. Affirmed.

Robert N. Bell, for appellant.

Weatherly & Stokely, for appellee.

DOWDELL J.

This is an action brought by the plaintiff to recover damages on account of personal injuries received for the alleged negligence of the defendant's servant or agent having superintendence and control of an electric lighting plant owned and operated by the defendant. The complaint, as originally filed, contains six counts, to which demurrers interposed by the defendant were sustained. The first second, and fourth counts were subsequently amended, and the complaint was further amended by the addition of a count designated as "A." Demurrers were refiled to the complaint as amended, and were by the court sustained. The plaintiff declining to plead further, the judgment was rendered for the defendant. From this judgment the present appeal is prosecuted.

While errors were separately assigned as to the ruling of the court on demurrers to each count as originally filed and as amended, these assignments are not separately insisted upon and practically one question raised by the demurrers is argued by counsel for appellant and appellee. It may be that counts 1, 2, 3, 4, 5, and 6 are not altogether free from objection; but as their imperfections are not urged in argument, except upon the principal question involved in the case, to which we will advert later on, we desist from further discussion. Count A, we think, is sufficient in its averments and states a good cause of action, unless it be that the demurrer addressed to this count, and which is likewise addressed to all the other counts, and which raises the question as to whether the defendant, a municipal corporation, had the power and authority under its charter to operate an electric lighting plant, is well taken. It seems to be settled as authority, where a municipal corporation acting within its charter powers, maintains and operates an electric lighting plant, the corporation may be held for the negligence of its servants or agents as any other person. Fisher v. Newbern, 140 N.C. 506, 53 S.E. 342, 5 L R. A. (N. S.) 542, 111 Am. St. Rep. 857; Owensboro v. Knox, 116 Ky. 451, 76 S.W. 191; Emory v. Philadelphia, 208 Pa. 492, 57 A. 977; Herron v. Pittsburg, 204 Pa. 509, 54 A. 311, 93 Am. St. Rep. 798; Twist v. Rocnester, 165 N.Y. 619, 59 N.E. 1131; Emporia v. Burns, 67 Kan. 523, 73 P. 94. See, also, note to Hebert v. Lake Charles Ice Co., 100 Am. St. Rep. 535.

The vital question in this case is whether the town of North Birmingham had authority and power under its charter to own and operate an electric lighting plant. The defendant corporation was organized under the general statute. Sections 2937 to 2967, inclusive of the Code of 1896 . Section 2950 contains an enumeration of the powers granted to the municipality incorporated under this statute. Subdivision 1 of this section, which may be termed the "general welfare clause," reads as follows: "To pass such by-laws and ordinances as may be necessary to enforce the powers in this article to them granted, and for their own government, and not contrary to law." Then follows, in subdivisions 2 to 12, inclusive, an enumeration of the powers granted. Subdivision 11 provides: "To purchase, hold and dispose of real property and such personal property as may be necessary for the use of the corporation." And subdivision 12 provides: "To exercise such other powers as are conferred on them by law." In the powers enumerated the authority or power to light the streets is not expressed, and much less the powers to own and operate an electric light plant for the purpose of lighting the streets. If such power exists, it must be deduced by construction from the subdivisions 1, 11, and 12, above set out, or rather, perhaps, by implication, since no grant of express power is to be found among the powers enumerated. The rule applicable to such cases, and which is quoted approvingly in Mayor of Mobile v. Moog, 53 Ala. 561, is thus stated by Judge Dillon in his work on Municipal Corporations (volume 1 [2d Ed.] § 55): "It is a general rule, and an undisputed proposition of law, that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation--not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied. Of every municipal corporation the charter or statute by which it is created is its organic act. Neither the corporation nor...