Slaughter v. . O'Berry

Furches, J. Tbe plaintiff is a citizen and tbe owner of a bouse and lot in tbe city of Goldsboro, and Goldsboro is an .incorporated city, and tbe owner of a public sewerage system. Tbe defendant, O’Rerry, is tbe chairman of tbe Sewerage Committee of said city, with power to grant privileges of connection with said city sewerage, upon, specified terms mentioned in tbe ordinances of said city. Among tbe specified requirements of tbe city ordinances are tbe following: That .no connection shall be made, but by some person elected and licensed by tbe city to make such connection. That said work shall then be done under tbe supervision and direction of the city inspector, and that tbe city shall furnish the materials and do the work of making such connection to within three feet of tbe building to' be so connected with said sewerage. That the application for such connection shall be in writing setting forth the location of tbe building to be connected, and the purposes for which the sewerage is to be used, a survey and plan of said sewerage containing an estimate of tbe cost of said connection, and that the applicant shall deposit a sufficient amount of money with the city to defray tbe expenses of such connection. The plaintiff has been elected and licensed to make such connections, and has made bis application in writing and furnished á survey of the premises with estimates of cost of said connection; but declined to make tbe deposit required by the *183 ordinance, and asked tbe privilege of furnishing his own material, and of doing his own work in making the connection, under the direction and supervision of the city inspector. This application of the plaintiff was refused for the reason that he had not made the deposit required by the ordinance, and because he proposed to' furnish his own material and do his own work in making the connection. These are the substantial facts as we understand them, and present the question of consideration and determination. The city being the owner of a public sewerage, it has the right, and it is its duty to protect the same from improper uses and connections. But this should be done in a reasonable manner, and so as not to affect private rights further than is necessary for that purpose. Where it becomes necessary to invade private property, it must be done with the consent of the owner or under the doctrine of eminent domain, when the owner would be entitled to compensation. Neither can. the <jity, in tire exercise of its corporate powers, interfere with the rights of the owner over his property, nor with his personal rights'where it is not necessary to doi so for the public benefit. From a consideration of these principles, it seems to us that the city had the right to say what is a proper connection with its sewerage; that it had a right to require that this connection should be made by its authorized agent and under the direction and supervision of its city inspector, and that only suitable material should be used in making such connection. But with these, it seems to us that its rightful powers ceased. The plans and specification for this connection had been made and approved. The connection was a proper one to be made, or the plans and specifications filed by the plaintiff would not have been approved. The plaintiff was a licensed *184 officer of tbe city to do such work, under the direction and supervision of tbe city inspector. So tbe question comes down to tbis: Should the plaintiff be allowed tO' furnish bis own material, subject to tbe inspection and approval of tbe city inspector, and to do bis own work on bis own premises, or shall lie be compelled to bire the city to furnish tbis material and to do bis work % We see no reason why be should be required to do so. We can see no benefit tbe city is to derive from such a requirement, unless it be a profit on the material or tbe work to' be done, or to furnish a job for some favorite of tbe corporate authorities. We do not say tbis is so, but we say that, if it is not, then we see no reason for such requirement, and no public benefit to be derived from such requirement. And if it is not required for tbe public good, it is an unnecessary invasion of tbe personal and property rights of tbe plaintiff — ultra vires, and unlawful. Too much stress should not be put upon tbe fact that the plaintiff is a licensed officer to make tbe connection — “to tap the main.” That fact supplies only one of the points made in tbis case, and therefore enters into its consideration. But bad be not been such licensed officer, it seems to us that it would have been only necessary for tbe plaintiff to have gotten some one licensed by the city to do such work — to make tbe connection with the mam, and tbe other work, such as supplying tbe material, digging tbe trench and covering tbe pipe, be might have been allowed to do himself, as the city ■was in no way interested in that. Where a city has tbe power to erect a public improvement, and to control, manage and protect the same, tbe line of demarcation is so small and so delicately drawn between such power and the rights of the individual citizens of the corpora *185 tion, tbat it is difficult to run and mark it, so as to give tbe corporation its proper powers without infringing upon individual rights and property rights. But, as delicate as this duty is, it seems to us that in this case the line of demarcation is plainly apparent. But if it was in doubt, it would have to be resolved against the defendants and in favor of the plaintiff’s individual rights. 1 Dillon Mun. Corp., par. 89; State v. Webber, 107 N. C., 962; Edgerton v. Water Co., at this term. We are therefore of the opinion that the city had the right to require that this connection should be made by its licensed officer; that material furnished should be proper for such work and subject to the inspection and approval of the city inspector; and that the work of putting them in should be done under the supervision of the city inspector. But we ai’e also of the opinion that the city had no right to compel the plaintiff to buy the material from it; nor had it the right to compel thfe plaintiff to pay it to do the work we have specified and pointed out above, in this opinion. The plaintiff was entitled to the mandamus, and the judgment of the Court below is Affirmed.