§ 472. Public expenditures in connection with a supply of light. If there are doubts as to the advisability and legality of a public corporation engaging in the business of supplying water either for its own use or that of private consumers, there is much graver doubt in respect to a supply of light.1218 The operation of a lighting plant involves more complicated industrial operations "including the purchase of raw material, the employment of many skilled workmen and the use of technical manufacturing processes constantly subject to improvement," as well as the use -cy, 128 Ill. 443; People v. Sisson, 75 App. Div. 138, 77 N. Y. Supp. 376. See, also, State Trust Co. v. City of Duluth, 104 Fed. 632. The rule does not apply to services gratuitously rendered. Boise City Artesian Hot & Cold Water Co. v. Boise City, 123 Fed. 232. 1216 Village of Ladd v. Jones, 61 Ill. App. 584; Spaulding v. Inhabitants of Peabody, 153 Mass. 129, 26 N. E. 421, 10 L. R. A. 397; Christensen v. City of Fremont, 45 Neb. 160; Baily v. City of Philadelphia, 184 Pa. 594, 39 L. R. A. 837. But see City of Crawfordsville v. Braden, 130 Ind. 149, 28 N. E. 849, 14 L. R. A. 268. "There can be little or no doubt that the power to light the streets and public places of a city is one of its implied and inherent powers as being necessary to properly protect the lives and property of its inhabitants and as a check on immorality. Wherever men herd together in villages, towns or cities, will be found more or less of the lawless or vicious, and crime and vice are plants which flourish best in the darkness. So far as lighting the streets, alleys and public places of a municipal corporation is concerned, we think that, independently of any statutory power, the municipal authorities have in * herent power to provide for lighting them. If so, unless their discretion is controlled by some express statutory restriction, they may, in their discretion, provide that form of light which is best suited to the wants and the financial condition of the corporation. It is well settled that the discretion of municipal corporations, within the sphere of their powers, is not subject to judicial control, except in cases where fraud is shown, or where the power or discretion is being grossly abused, to the oppression of the citizen. We can see no good reason why they may not also, without statutory authority, provide and maintain the necessary plant to generate and supply the electricity required. Possessing authority to do the lighting, that power carries with it incidentally, the further power to procure or furnish whatever is necessary for the production and dissemination of the light." Rushville Gas Co. v. City of Rushville, 121 Ind. 206, 6 L. R. A. 315. See notes on the subject generally in 8 L. R. A. 487; 10 L. R. A. 398; 11 L. R. A. 729; 14 L. R. A. 268; 30 L. R. A. 542, and 44 L. R. A. 427, and note on the duty of a city in lighting its streets, 2 Mun. Corp. Cas. 500. of complicated machinery. It involves not only the supply and distribution of the commodity but also its manufacture, and the statement made in connection with the establishment of waterworks is also essentially true that judicial or impartial relations cannot be sustained where the controlling power has an interest in the object of control either as a "beneficiary, an owner or a user of its services." The supreme court of the United States1217 has said in discussing the validity of an exclusive franchise for lighting, that "It is true as suggested in argument that the manufacture and distribution of illuminating gas by means of pipes. or conduits placed under legislative authority in the streets of a 1217 New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650. See, also, Jacksonville Elec. Light Co. v. City of Jacksonville, 36 Fla. 229, 30 L. R. A. 540; City of Crawfordsville v. Braden, 130 Ind. 149, 14 L. R. A. 268; Keokuk Gaslight & Coke Co. v. City of Keokuk, 80 Iowa, 137; State v. City of Hiawatha, 53 Kan. 477; New Orleans Gaslight Co. v. City of New Orleans. 42 La. Ann. 188; Opinion of Justices, 150 Mass. 593, 8 L. R. A. 487. "We have no doubt that if the furnishing of gas and electricity for illuminating purposes is a public service, the performance of this service can be delegated by the legislature to cities and towns for the benefit of themselves and their inhabitants and that such cities and towns can be authorized to impose taxes for this purpose upon their inhabitants and to establish reasonable rates which the inhabitants who use the gas or electricity can be compelled to pay. The fundamental question is, whether the manufacture and distribution of gas or electricity to be used by cities and towns for illuminating purposes is a public service. Artificial light is not perhaps, so absolutely necessary as wa ter, but it is necessary for the comfortable living of every person. Although artificial light can be supplied in other ways than by the use of gas or electricity, yet the use of one or both for lighting cities and thickly settled towns is common, and has been found to be of great convenience, and it is practically impossible for every individual to manufacture gas or electricity for himself. If gas or electricity is to be generally used in a city or town, it must be furnished by private companies or by the municipality, and it cannot be distributed without the use of the public streets, or the exercise of the right of eminent domain." Citizens' Gaslight Co. v. Inhabitants of Wakefield, 161 Mass. 432, 31 L. R. A. 457; Mitchell v. City of Negaunee, 113 Mich. 359, 38 L. R. A. 157; Black v. City of Chester, 175 Pa. 101; Seitzinger v. Borough of Tamaqua, 187 Pa. 539; Smith v. City of Nashville, 88 Tenn. 464, 7 L. R. A. 469. See, also, 30 Am. St. Rep. 225. Joyce, Elec. Law, §§ 231 et seq. But see City of De troit v. Hosmer, 79 Mich. 384, and Wade v. Borough of Oakmont, 165 Pa. 479. town or city is a business of a public character. Under proper management, the business contributes very materially to the public convenience while in the absence of efficient supervision it may disturb the comfort and endanger the health and property of the community. It also holds important relations to the public through the facilities furnished by the lighting of streets with gas for the detection and prevention of crime. An English historian contrasting the London of his day with the London of the time when its streets supplied only with oil lamps were scenes of nightly robberies says that 'The adventurers in gas lights did more for the prevention of crime than the government had done since the days of Alfred.' Municipal corporations constitute a part of the civil government of the state and their streets are highways which it is the province of government by appropriate means to render safe. To that end the lighting of streets is a matter of which the public may assume control." The last sentence from this quotation unquestionably states the extent to which public corporations should go in respect to a supply of light.1218 This subject as well as that pertaining to a supply of water can be logically divided into two parts. First, that affecting the right of a public corporation to establish and operate a plant for the lighting of its public buildings and streets, and second, that which may limit or affect the right of such a corporation to supply private consumers. $473. Nature of the power. The power to erect and operate a lighting plant or to contract for a supply of light with private manufacturers is never included among the implied powers belonging to a public corporation. It must be expressly, positively and legally granted and 1218 The authorities, however, are 276; Baily v. City of Philadelphia, not at all unanimous in holding that a duty rests upon a municipal corporation to light its public thoroughfares. The power it is considered is permissive rather than compulsory even under statutes directly authorizing such action. See Gaskins v. City of Atlanta, 73 Ga. 746; City of Freeport v. Isbell, 83 Ill. 440; Randall v. Eastern R. Co., 106 Mass. 184 Pa. 594, 39 L. R. A. 837. But see Halsey v. Rapid Transit St. R. Co., 47 N. J. Eq. 340, 19 L. R. A. 663. "They must be lighted at night to make their use sufficient and convenient and to prevent lawlessness and crime." Palmer v. Larchmont Elec. L. Co., 158 N. Y. 231, 43 L. R. A. 672. 1219 in unmistakable terms.1 It cannot be inferred from a general grant of power to provide for the comfort, the safety and the welfare of the inhabitants of a particular locality.1220 When ex 1219 Thompson Houston Elec. Co. v. City of Newton, 42 Fed. 723; Santa Ana Water Co. v. Town of San Buenaventura, 65 Fed. 323, and Board of Finance of Jersey City v. Jersey City, 57 N. J. Law, 452, 31 Atl. 625, hold inferentially that the legislature may ratify an act on the part of the municipality at the time of the doing of which it did not possess the legal authority. Windsor v. City of Des Moines, 110 Iowa, 175, 81 N. W. 476; State v. Board of Liquidation, 51 La. Ann. 1849; Mealey v. City of Hagerstown, 92 Md. 741, 48 Atl. 746; Belding Land & Imp. Co. v. City of Belding, 128 Mich. 79, 87 N. W. 113; Black V. Common Council of Detroit, 119 Mich. 571; Arbuckle-Ryan Co. v. City of Grand Ledge, 122 Mich. 491; Howell v. City of Millville, 60 N. J. Law, 95. A grant of authority to pass an ordinance for the lighting of streets does not convey by implication the power to construct and maintain an electric lighting plant. Hendrickson v. City of New York, 160 N. Y. 144; Engstad v. Dinnie, 8 N. D. 1, 76 N. W. 292. An appropriation for the construction of an electric light plant including other items is covered by Rev. Code, § 2262, requiring such an appropriation to specify "the amount appropriated for each purpose." See, also, Titusville Elec. Light & Power Co. v. City of Titusville, 196 Pa. 3; Stehmeyer v. City Council of Charleston, 53 S. C. 259, 31 S. E. 322. In regard to the organization of street lighting districts under the N. J. and N. Y. laws, see AlliAbb. Corp. Vol. II-16. son v. Corker, 67 N. J. Law, 596, 52 Atl. 362, 60 L. R. A. 564; Howell v. City of Millville, 60 N. J. Law, 96; Lawrence v. Smith, 24 Misc. 333, 52 N. Y. Supp. 724; In re Village of Le Roy, 23 Misc. 53, 50 N. Y. Supp. 611. Hendrickson v. City of New York, 160 N. Y. 144. A contract made by one municipality prior to its consolidation with another for a long term of years extending beyond the time when the consolidation is to take place is void as against public policy and especially does this rule apply where from all the circumstances it is apparent that the contract was not made in good faith. 1220 Spaulding v. Inhabitants of Peabody, 153 Mass. 129, 26 N. E. 421. "Towns are subordinate divisions of a state and they vary greatly in the number of their inhabitants and in the amount of their taxable property. It is wholly for the legislature to determine, within the limitations of the constitution, the powers which towns shall possess; and when it appears that the custom of the legislature has been specifically to define from time to time the purposes for which towns may raise money by the taxation of their inhabitants and when the legislature can at any time grant additional powers if they are deemed necessary a somewhat strict construction of existing statutes is reasonable and in accordance with the presumed intention of the legislature. # "Towns have been kept rigidly within this rule by the legislature and the court.' Gas pressly granted, it is generally regarded as a continuing power and one which carries with it the right to use such agencies as may render the power effective.1221 These agencies include, com has now been used for a long time in thickly settled communities, and has been bought for that purpose; yet there is nothing in the statutes indicating that towns may construct and maintain gas works for the purpose of lighting their streets except the general words that they may erect and maintain street lamps; and the construction put upon the statutes in practice has been that towns under the authority conferred by the general laws have not undertaken themselves to construct and maintain gas works for the that the vote is beyond 'the legal right and power' of the town." Sullivan v. City of Holyoke, 135 Mass. 273. Though such a power has been implied from the right to enforce police regulations. See Hay v. City of Springfield, 64 Ill. App. 671. The grant of the power to light the streets includes the right to acquire a lighting plant by purchase or construction provided that the constitutional limitation of indebtedness is not exceeded. Rockebrandt v. City of Madison, 9 Ind. App. 227, 36 N. E. 444; Rushville Gas Co. v. City of Rushville, 121 Ind. 212, 6 L. R. A. 315; Tuttle v. Brush Elec. Illuminating Co., 50 N. Y. Super. Ct. (18 J. & S.) 464. A to the manner of lighting streets. Lynchburg & R. St. R. Co. v. Dameron, 95 Va. 545. The power to erect or otherwise acquire an electric light plant does not carry with it the implied authority to guarantee the payment of bonds issued by a private corporation engaged in the business of manufacturing and selling electricity. Ellinwood v. City of Reedsburg, 91 Wis. 131. * manufacture of gas or electricity and the distribution of them through the streets of towns and cities, for the purpose of furnishing light is one of too much importance discretionary power is implied as to be attached as a mere incident to the power given to erect and maintain street lamps; and we think that if the legislature had intended that towns generally should have authority to erect and maintain such works, the authority would have been plainly expressed in the statutes, with such limitations and accompanied by such restrictions as the legislature might think it pru dent to establish. We see no indications in the existing statute that the legislature intended to make provision for the exercise of any such authority by the towns of the commonwealth. If we assume that the only action now contemplated by the town of Peabody is the erection and maintenance of electric works for the purpose of lighting its streets in the manner shown by the evidence, still we are of opinion 1221 City of Crawfordsville v. Braden, 130 Ind. 149, 28 N. E. 849, 14 L. R. A. 268; Belding Land & Imp. Co. v. City of Belding, 128 Mich. 79, 87 N. W. 113; State v. Missouri, K. & T. R. Co., 164 Mo. 208, 64 S. W. 187; Schefbauer v. Township Committee of Kearney, 57 N. J. Law, 588, 31 Atl. 454; Lynchburg & R. St. R. Co. v. Dameron, 95 Va. 545, 28 S. E 951. Even under a liberal grant of power, a municipality has no right |