Illuminating Co. v. Tax Assessors.

themselves, or fixtures or appurtenances as related to the land on which the plant is established, shows that in most of said cases, and probably in all, the corporations owning and operating said pipes or poles and wires, as the case may be, have an easement in fee in the highways where they are located, by virtue of their charters and the ordinances of the city in which they are located; and hence said cases are not in point here. See Fechet V. Drake (Ariz.), 12 Pac. 694; Hughes v. Power Co. (N. J. Ch.), 32 Atl. 69; Badger Lumber Co. v. Marion Water Supply, Electric Light & Power Co. (Kan. Sup.), 29 Pac. 476; W. U. Tel. Co. v. Tennessee, 1 Am. Electl. Cas. 327; Philbrick v. Ewing, 97 Mass. 133; Appeal of Des Moines Water Co., 48 Iowa, 324; Capital City Gaslight Co. v. Charter Oak Ins. Co., 51 Iowa, 31; Crosw. Electricity, 227, and cases cited in note.

We are aware that holding said poles and wires to be personal property merely is, in effect, to hold that they are not taxable at all when owned by a corporation, as they are in this case, except as they are taxed to the shareholders, they not being within the description of property enumerated in said section 11. But, although reluctant to come to the conclusion that they are not appurtenant to the real estate, yet we are obliged to administer the law as we find it, no matter what the result may be, and leave it to the general assembly to make such changes therein, if any, as they may deem advisable, and for the interests of the State, in the way of fairly distributing the burdens therof. Whether or not the city may not properly obtain a revenue from petitioner by way of charging a rental for the use of that part of the public streets occupied by said poles and wires, as has been done in other States (see St. Louis v. W. U. Tel. Co., 148 U. S. 92, 13 Sup. Ct. 845; id. 149 U. S. 465; Lancaster v. Edison Electric Illuminating Co., 2 Am. Elect. Cas. 116; Thomp. Electricity, sec. 46; City of New Orleans

Illuminating Co. v. Tax Assessors.

v. Great Southern Telephone & Telegraph Co. (La.), 27 Am. Law. Rep. (N. S.) 426, note; s. c. 3 South. 533; Mutual Union Tel. Co. v. City of Chicago, 16 Fed. 309), we are not called upon to decide, but we do not think they are taxable to the corporation owning them, either as real or personal estate.

After a careful consideration of all the evidence offered as to the fair cash value of the property in question, we think it preponderates in favor of the petitioner, and we are, therefore, of the opinion that it is entitled to recover the amount of the tax paid by it on said Thames street estate in excess of the valuation placed hereon in its accounts rendered to the assessor as aforesaid; that it is also entitled to recover the amount paid by way of a tax on its poles and wires in 1894, valued at $50,000; and that the dynamos and wiring inside station having been improperly taxed as real estate, and it appearing that the corporation owed debts in excess of the value thereof, even if said articles had been taxed as personal property, it is also entitled to recover the amount assessed thereon.

NOTE.-In Liebe v. Nicolai, Oregon Supreme Court, March 16, 1897 (48 Pac. Rep. 172), held, that dynamos and other electrical machinery placed by a tenant in a leased building to furnish power for an electric lighting system to light that and other buildings, were trade fixtures, removable by the tenant during his term.

For other cases on "Electrical Appliances as Property," see note, vol. 5, p. 630.

Electric Co. v. City of Jacksonville.

JACKSONVILLE ELECTRIC LIGHT COMPANY V. CITY OF JACKSONVILLE AND GENERAL ELECTRIC COMPANY.

Florida Supreme Court, Oct. 15, 1895.

(36 Fla. 229.)

POWER OF MUNICIPALITY TO SUPPLY ELECTRIC LIGHT.

(Head-note by the court):

Supplying the inhabitants of a city with electric light, for use in their private residences and houses, is such a municipal purpose as to authorize its delegation by the Legislature to municipal bodies.

The charter act of the city of Jacksonville, Chapter 3775, Acts of 1887, conferring power upon the city council to provide for lighting the city by gas or other illuminating material, or in any other manner, together with other specified powers, held sufficient to authorize the erection and maintenance, at public cost, of an electric plant of sufficient power and capacity to light, not only the streets and public places in the corporation, but also for the purpose of supplying the inhabitants of the city with electric light for use in their private residences and houses. Cases of this series cited in opinion, appearing in bold faced type: Thomson-Houston Electric Co. v. Newton, vol. 3, p. 507; Linn v. Chambersburg, vol. 4, p. 647.

ACTION by an electric light company, which owned and operated a plant in the city of Jacksonville, to restrain the municipal authorities of that city from constructing an electric light plant, for the purpose of supplying light both for the purpose of lighting the streets and public places and also for supplying light to private consumers. It was particularly sought to restrain the execution and performance of a contract bewteen the Board of Public Works of said city and the General Electric Company for furnishing material, machinery, apparatus, &c., for such plant, and from appropriating city revenues (the com

Electric Co. v. City of Jacksonville.

plainant being a tax payer), to pay therefor. The facts sufficiently appear in the opinion.

The complainant appealed from an order denying motion for temporary injunction, and dismissing the bill for want of equity; and moved the appellate court for a temporary injunction as prayed for.

John E. Hartridge and Henderson & Raney, for appellant. A. W. Cockrell & Son, for appellee.

MABRY, C. J.:

The question presented on the merits is whether the city of Jacksonville has the power to erect and maintain an electric plant of sufficient power and capacity to light the streets and public places of the city, and at the same time supply from said plant the inhabitants thereof with electric lights for their private residences and business houses.

We have been unable to find any authorities bearing directly on the question involved in the merits of this case other than those cited in the briefs of counsel, and the decisions cited speak of the paucity of adjudications on the point. The general rule stated by Judge DILLON (vol. 1, Municipal Corporations, sec. 89) is recognized as a correct summary of the decisions on the question. The author states the rule as follows: "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.

Electric Co. v. City of Jacksonville.

Of every municipal coproration 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. Much less can any power be exercised, or any act done, which is foribdden by charter or statute." The same author says (section 91) that "the rule of strict construction of corporate powers is not so directly applicable to the ordinary clauses in the charters or incorporating acts of municipalities as it is to the charters of private corporations; but it is equally applicable to grants of powers to municipalities and public bodies which are out of the usual range, or which may result in public burdens, or which, in their exercise, touch the right to liberty or property, or, as it may be compendiously expressed, any common law right of the citizen or inhabitant." While a strict construction should be applied to the grant of power, yet, if a power is necessarily or fairly implied in, or incident to, those clearly given, it is not to be impaired by a strict construction. Kyle v. Halin, 8 Ind. 34. In speaking of the powers of municipal corporations, it is said in City of Bridgeport v. Housatonic R. R. Co., 15 Conn. 495; They may exercise all the powers within the fair intent and purpose of their creation which are reasonably proper to give effect to power 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." In construing a charter giving to a city the right to pass ordinances for the prevention and suppression of fires, and to appoint and remove fire wardens, and to prescribe the powers and duties of such fire wardens, and of fire engineers and firemen, and to raise money to support the fire department, it was held that, although no express grant of power was conferred to

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