The City of Crawfordsville v. Braden

Decision Date27 October 1891
Docket Number16,200
Citation28 N.E. 849,130 Ind. 149
PartiesThe City of Crawfordsville et al. v. Braden
CourtIndiana Supreme Court

Petition for a Rehearing Overruled Jan. 7, 1892.

From the Montgomery Circuit Court.

The cause is reversed, at the costs of the appellee, with instructions to the circuit court to sustain the demurrer.

W. T Brush, P. S. Kennedy, S. C. Kennedy, T. F. Davidson and J West, for appellants.

B Crane and A. B. Anderson, for appellee.


McBride, J.

The question we are required to decide in this case is, has a municipal corporation in this State the power to erect, maintain and operate the necessary buildings, machinery and appliances to light its streets, alleys and other public places with the electric light, and at the same time and in connection therewith to supply electricity to its inhabitants for the lighting of their residences and places of business. Some other questions are incidentally involved, but the principal controversy is as above stated.

That a city or an incorporated town may buy and operate the necessary plant and machinery to light its streets, alleys and other public places is not controverted by the appellee, but he denies the right to furnish the light to the individual for his private use. The question is argued on the theory that if the city has such power it must be by virtue of some express legislative grant, and is not among the implied powers possessed by municipal corporations; that statutes conferring powers upon municipal corporations, especially those involving the exercise of the taxing power, must be strictly construed, and that, strictly construed, no statute confers the necessary authority.

The purchase of the necessary land, machinery and material, and the erection and maintenance of such a plant do involve the exercise of the taxing power. The necessary funds must be supplied by taxing the taxpayers of the municipality.

The only statute bearing directly upon this question is the act of March 3d, 1883. (Elliott's Supp., section 794 et seq.) Section 794 contains the following: "That the common council of any city in this State, incorporated either under the general act for the incorporation of cities, or under a special charter, and the board of trustees of all incorporated towns of this State, shall have the power to light the streets, alleys and other public places of such city and town with the electric light, or other form of light, and to contract with any individual or corporation for lighting such streets, alleys and other public places with the electric light, or other forms of light, on such terms, and for such times, not exceeding ten years, as may be agreed upon."

Section 795 provides that for the purpose of effecting such lighting the common council of a city, or board of trustees of a town, may provide by resolution or ordinance for the erection and maintenance in the streets, etc., of the necessary poles and appliances.

Section 796 authorizes granting to any person or corporation the right to erect and maintain in the streets, etc., the necessary poles and appliances for the purpose of supplying the electric or other light to the inhabitants of the corporation.

Section 797 validates contracts of a certain character, made before the enactment of the statute, and section 798 provides for the appropriation of lands and right of way by corporations engaged in the business of lighting cities or towns, "or the public or private places of their inhabitants, with the electric light," etc.

It will be observed that, while section 796 provides for granting to third persons the right to furnish the light to the inhabitants, it does not, in terms, give any such power to the corporation. It will, therefore, be necessary for us to inquire if the corporation possesses such power independently of the statute, or, if not, if the statute is susceptible of a fair construction, in accordance with established rules, which clothes the corporation with such power.

In the case of Rushville Gas Co. v. City of Rushville, 121 Ind. 206, 23 N.E. 72, this statute was considered, in so far as relates to the right of the city to buy and operate the necessary plant and machinery to light its streets, alleys and other public places, and it was held that the statute was sufficient to confer that power. In that case the court, after announcing the conclusion above stated, used the following language: "If there were any doubt as to the meaning of the act it would be removed by considering it, as it is our duty to do, in connection with the general act for the incorporation of cities, for that act confers very comprehensive powers upon municipal corporations as respects streets and public works, and contains many broad general clauses akin to those which Judge Dillon designates as 'general welfare clauses.' Our own decisions fully recognize the doctrine that municipal corporations do possess, under the general act, authority as broad as that here exercised, and the operation of that act is certainly not limited or restricted by the act of 1883."

The eminent author above referred to thus defines the powers of municipal corporations: "It is a general and 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 the 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 its officers can do any act, or make any contract, or incur any liability, not authorized thereby, or by some legislative act applicable thereto. All acts beyond the scope of the powers granted are void." Dillon Municipal Corporations (4th ed.), section 89. Judge Dillon, however, quotes approvingly from the Supreme Court of Connecticut as follows: Section 90, page 147: "All corporations, whether public or private, derive their powers from legislative grant, and can do no act for which authority is not expressly given, or may not be reasonably inferred. But if we were to say that they can do nothing for which a warrant could not be found in the language of their charters, we should deny them, in some cases, the power of self-preservation, as well as many of the means necessary to effect the essential objects of their incorporation. And therefore it has long been an established principle in the law of corporations, that they may exercise all the powers within the fair intent and purpose of their creation, which are reasonably proper to give effect to powers expressly granted. In doing this they must (unless restricted in this respect) have a choice of means adapted to ends, and are not to be confined to any one mode of operation." City of Bridgeport v. Housatonuc R. R. Co., 15 Conn. 475 (501).

This principle has been repeatedly recognized by this court. Thus, in Smith v. City of Madison, 7 Ind. 86, it is said: "The strictness then to be observed in giving construction to municipal charters should be such as to carry into effect every power clearly intended to be conferred on the municipality, and every power necessarily implied, in order to the complete exercise of the powers granted."

Again, in Kyle v. Malin, 8 Ind. 34 (37), the court said: "The action of municipal corporations is to be held strictly within the limits prescribed by statute. Within these limits they are to be favored by the courts. Powers expressly granted, or necessarily implied, are not to be defeated or impaired by a stringent construction."

Among the implied powers possessed by municipal corporations in this State are those grouped under the somewhat comprehensive title of "Police Powers"--a power which it is difficult either to precisely define or limit; a power which authorizes the municipality in certain cases to place restrictions upon the power of the individual both in respect to his personal conduct and his property; and also furnishes the only authority for doing many things not restrictive in their character, the tendency of which is to promote the comfort, health, convenience, good order and general welfare of the inhabitants.

The police power primarily inheres in the State; but the Legislature may, and in common practice does, delegate a large measure of it to municipal corporations. The power thus delegated may be conferred in express terms, or it may be inferred from the mere fact of the creation of the corporation. The so-called inferred or inherent police powers of such corporations are as much delegated powers as are those conferred in express terms, the inference of their delegation growing out of the fact of the creation of the corporation, and the additional fact that the corporation can only fully accomplish the objects of its creation by exercising such powers.

Special charters, as well as general statutes for the incorporation of cities and towns, usually contain a specific enumeration of powers granted to and which may be exercised by such corporations. In many cases the powers thus enumerated are such as would be implied by the mere fact of the incorporation.

When powers are thus enumerated in a statute which would belong to the corporation without specific enumeration, the specific statute is to be regarded, not as the source of the power but as merely declaratory of a pre-existing power, or, rather, of a power which is inherent in the very nature of a municipal corporation,...

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