Opinion
(Filed 8 December, 1903.)
Municipal Corporations — Elections — Cities and Towns — Constitution N.C. Art. VIII, Sec. 4 — Laws (Private) 1903, Chs. 85, 86.
Where a statute provides that an election shall be held to pass upon the question whether a town shall incur the expense of an electric light system, the board of aldermen cannot contract for the establishment of such electric light system without first submitting the question to a vote of the people of the town.
ACTION by J. C. Wadsworth against the city of Concord, heard by Shaw, J., at chambers, at Shelby, N.C. 26 March, 1903. From a judgment for the plaintiff, the defendant appealed.
L. T. Hartsell for plaintiff.
Montgomery Crowell, Burwell Cansler, and W. M. Smith for defendant.
CLARK, C. J., and DOUGLAS, J., concurring in result, hold that a municipal board cannot bind the town by a contract as to necessary expenses to be incurred after their term of office shall expire.
The General Assembly of 1903, ch. 85, Private Laws, amended the charter of the town of Concord. By section 5 of said act it is provided: "That the commissioners or board of aldermen of said city shall have the power and it shall be their duty to provide for lighting the streets and public buildings of said city and to contract for and pay for the same." At the same session, Private Laws, chapter 86, we find an act entitled "An act to authorize the commissioners for the town of Concord to contract for lights for said town." It is provided that whenever twenty citizens of said town shall apply to the commissioners (588) by a written petition, asking the commissioners to light the streets and public buildings, it shall be the duty of the said commissioners to order an election to be held in said town, at which election those in favor of lights shall vote a ticket on which shall be written or printed the word "Light" and those opposed shall vote a ticket on which shall be written or printed the word "Darkness." If a majority shall vote "Light," then said commissioners shall have full power and authority to contract for such lights in such quantities and upon such terms as said commissioners may deem for the best interest of said town, for a period not exceeding twenty years, or said commissioners shall have the right to erect or purchase a plant for lighting said town and operate the same. It is further provided that if a majority of said citizens shall vote for lights, the commissioners may levy a tax to pay for the same. No limit is fixed to the rate or amount of such tax, except that it shall be sufficient to pay "regularly and promptly for said lights." These statutes were ratified 16 February, 1903. On November, 1902, the defendant entered into a contract with Thomas A. Scott and his associates for the purpose of lighting the said streets, the terms of which are fully set out in the record, which was to run for the term of eighteen years, and which conferred upon the said Scott and his associates a franchise for twenty-five years for commercial and domestic lighting. No petition was ever filed and no election ever held pursuant to chapter 86 of said Laws. We do not deem it necessary to set forth more fully the terms of the contract.
The sixth allegation of the answer, filed 25 March, 1903, recites a resolution referring to Laws 1903, ch. 85, and reciting: "Whereas the town of Concord has a population of about 10,000 people, many hundreds of whom work in the mills between sundown and sunrise, (589) and has about thirty miles of public streets, and a lot of public buildings; and whereas it is not only the sense of the board of commissioners for the town of Concord that it is a necessary expense of said town to light the streets and its public buildings, but the Legislature now in session has given the city the power to provide for lighting the streets and public buildings of said city, and to contract for and pay for same; now, whereas the contract heretofore entered into with Thomas A. Scott and Reuben Burton is fair, just, and equitable, and to the best interest of said town: Therefore, be it resolved by the commissioners of the town of Concord, that said contract with Thomas A. Scott and Reuben Burton be and the same is hereby in all respects confirmed."
In view of the answer and the legislation in respect to the town of Concord prior to 16 February, 1903, it would seem that whatever validity this contract has is by virtue of the two acts hereinbefore referred to. This is evidently the view of the defendant. Certainly, if the contract was incomplete prior to 16 February, 1903, the attempt to confirm it without complying with chapter 86, Laws 1903, could have no other or further effect than if it had been originally made at that time. No explanation is given in the answer why this contract was not submitted to a vote of the people pursuant to chapter 86, Laws 1903. As we have seen, the act authorized and directed this course to be pursued upon the petition of twenty citizens, and it would have required but a short time to have submitted it to the voters and thereby removed all questions in regard to its validity.
This action is brought by the plaintiff, a citizen and taxpayer, for the purpose of enjoining the town from entering into said contract. A number of interesting questions were discussed before us upon the argument and in the briefs, respecting the right of a town to enter into a contract of this character for the purpose of furnishing lights as a "necessary expense." Whatever views we may entertain upon (590) that question, we are of the opinion that the power of the commissioners to enter into a contract for lighting the said streets is prescribed by and restricted to the provisions of chapter 86, Private Laws 1903. The two statutes should be read together, and thus read they make it the duty of the commissioners and empower them to provide for lighting the streets and to contract and pay for the same when empowered so to do in the manner pointed out in the statute. It may be that by a proper construction of the charter the power is conferred to provide lights and pay for the same out of the ordinary revenues of the town, but if the citizens wish a more extended or permanent system for lighting the town, requiring the levy of a special tax, they may confer upon the commissioners the power to make the contract not exceeding twenty years. It would seem clear that it was the purpose of the Legislature to restrict the power to make such contract by the terms of chapter 86; otherwise this act, which was evidently passed as a companion to the act amending the charter, chapter 85, would be of no effect. "Respecting the mode in which contracts by corporations should be made, it is important to observe that when, as is sometimes the case, the mode of contracting is specially and plainly prescribed and limited, that mode is exclusive and must be pursued or the contract will not bind the corporation." Dillon Mun. Corp., sec. 449.
In Zottman v. San Francisco, 20 Cal. 102, 81 Am. Dec., 96, Field, C. J., says: "The mode in such cases constitutes the power. . . . Aside from the mode designated, there is want of all power."
The Court, in Des Moines v. Gilchrist, 67 Iowa 210, says: "It is a general principle of the law that the specific designation of the manner of exercising a power operates as a limitation upon the general power conferred." The Code of Iowa conferred upon cities the general (591) power to make regulations against danger from accident by fire, and to establish "fire districts," and on petition of the owners of two-thirds of the grounds included in any square to prohibit the construction of wooden buildings, etc. It was held that an ordinance prohibiting wooden buildings within such squares passed without the petition of the requisite number of property-owners was void.
"Where a thing is directed to be done through certain means or in a particular manner, there is implied an inhibition upon doing it through any other means or in a different manner." Keckuk v. Scroggs, 39 Iowa 447.
A statute authorized the council of Pittsburg to grade, on the application of a majority of the lot-holders of the street, and to assess the cost, etc. It was held by the Supreme Court of Pennsylvania, Sharswood, J., that "Without such application the city had no power or jurisdiction in the premises." Pittsburg v. Waters, 69 Pa. St., 365.
In Swift v. Williamsburg, 24 Barbour, 427, the plaintiff having performed services for the city upon a contract made in the absence of a compliance with the statute requiring a petition by the requisite number of citizens, the Court says: "If plaintiff can recover on the state of facts he has stated in his complaint, the restrictions and limitations which the Legislature sought to impose upon the powers of the common council go for nothing. And yet these provisions are matters of substance, and were designed to be of some service to the constituents of the common council."
"It is an elementary principle of construction that charters of corporations conferring powers are to be construed strictly." Cooley Const. Lim., 232.
It does not appear why, with this act in full force and effect, the commissioners entered into the contract in controversy without consulting or having the approval of the citizens of the town. With (592) this, of course, we have nothing to do. It is ours to construe and declare the law. The passage of chapter 86 is strictly within the power and duty of the Legislature, as prescribed by Article VIII, section 4, of the Constitution: "It shall be the duty of the Legislature to provide for the organization of cities, towns, and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent abuses in assessment and in contracting debts by such municipal corporations."
Whether providing lights for the city is a necessary expense is an interesting question. It has been discussed and considered by this Court in Thrift v. Elizabeth City, 122 N.C. 31, 44 L.R.A., 427. We are of the opinion that when it is made the duty of the commissioners to provide lights it is at least a legislative construction of the Constitution that it is a necessary expense. To what extent they may incur debts or make contracts for a long term is a delicate and important question not necessary to be decided in this case. It is within the province of the Legislature to prescribe the terms and conditions upon which municipal corporations may enter into such contracts. It is held by many respectable courts that the power to make such contracts is unlimited as to time. There are authorities to the contrary. The question is of much importance to the citizens of this State, and deserves the careful consideration of the legislative department of the Government.
We think that for the reasons hereinbefore set out the judgment of his Honor should be
Affirmed.