Smith v. City of Newbern

ByNOM, J. This is a civil action against the defendant, a municipal corporation, to recover the sum of $930.58, due by audited account for building a market house in and for the use of the city of Newbern. There was a verdict and judgment thereon for the plaintiff in the Court below and an appeal to this Court. The case stated presents for our decision but one question,, viz: Whether the city of Newbern had the power to build a. market house under the laws of the corporation. For the power, the plaintiff relies upon section 13 of chapter 25 of the acts of 1779, being an act for the regulation of the town of Newbern and for other purposes, which, after enumerating other powers conferred upon the commissioners not material to our case, proceeds thus: “ And shall have power, *18 from time to time, and for all times hereafter, under their common seal, to make such rules, orders, regulations and ordinances as to them shall seem meet, for repairing the streets, erecting public wharves, appointing market places and regulating the same, erecting public pumps and repairing the same, appointing town watches or patrols and making proper allowances for such services, and for all such other necessary ordinances, rules and orders which may tend to the advantage, improvement and good government of said town, and the same rules, regulations and ordinances, from time to time, to alter, change, amend or discontinue, as to the said commissioners, or a majority of them, shall appear necessary and best answer the purposes intended for regulating-and governing said town.” 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 im, or incident to .the powers expressly granted ; third, those essential to the declared objects and purposes of the corporation. Dillon .Mun. Corporations, Sec. 5o; Spaulding v. Lowell, 23 Rich. 71, 74. Our case seems to fall within the second class, for conceding that the power of “ appointing a market place and regulating the same ?’ is:not an express power to build, yet it is fairly implied, because a market house is reasonably neeesssary and conducive to the enjoyment of the market place. •‘Market, a public place appointed by public authority, where all sorts of things necessary for the subsistence or for the convenience of life are sold.” Bouv. L. Diet. Tit. Mar,ket. “ Market is taken for the place where kept.” Lovel, L. D. Tit. Mafket. A “market place” does not necessarily or usually mean an .uncovered space of ground dedicated as a .market, but a market house, just as we say “Monmouth place,” meaning the building,, or as we call a residence and its grounds “ a fine place.” All corporations derive their powers from legislative grants *19 and can do no act for which authority is not expressly given or may not be reasonably inferred. But if we say they can do nothing for which a war ran t could not be found in the language of their charter, we deny them, in many cases, the power of self preservation, as well as many of the means necessary to effect the essential object of their creation1 — hence they may exercise all the powers within the fair intent and purpose of their creation which are reasonably necessary to give effect to powers expressly granted, and in doing this they must have the choice of means adopted to ends and are not confined to any one mode of operation. Bridgeport v. Railroad Co., 15 Conn. 475, 501. Here the power is granted in express terms “ to make all such necessary ordinances, rules and orders as may tend to the advantage, improvement and good government of the town.,” thereby vesting in the corporation the discretion as to the measure and mode of exercising the powers conferred. Under the powers before recited and as incident thereto, the city of Newbern unquestionably has power to provide suitable accommodations for the transaction of the business of the corporation — as to build a town house, French v. Quincy, 3 Allen 9; People v. Harriss, 4 Cal. 9. So as a sanitary regulation the city has power to procure a supply of water — as to bore an artesian well. Livingston v. Pippen, 31 Ala. 542; Rome v. Cabot, 28 Ga. 50. So to preserve the cleanliness and salubrity of the city, it may erect public hospitals. Milne v. Davidson, 5 La. 410. And for public health, convenience and comfort, it may regulate burials, as by establishing cemeteries. City Council v. Baptist Church, 4 Strob. 306. It has power to abate and remove l/i/oery stables, slaughter houses, gas works, powder houses, bawdy houses and the like, when, in the exercise of a fair discretion, they are deemed a nuisance to the town, as shown by innumerable cases. It is not necessary that incorporated eities should have power by express grant to build a market house. Thus it has been held that a town having authority to make by-laws for managing and ordering its “prudential affairs ” has power to ap *20 propriate money for the erection of a market house and raise the amount by taxation. Caldwell v. Allen, 33 Ill. 416; 23 Mich. 344; Spaulding v. Lowell, 23 Peck. 71. So power to K establish and regulate markets,” as a necessary incident, authorizes the purchase of ground whereon to erect the building* 14 N. Y. 356. It may be that at the time of this grant, in the rude begin-, ning of society in this country, the immediate erection of a market house was not within the means of the corporation or intended by the grant any more than the costly structures which now adorn American cities under similar grants ; but as-population, wealth and refinement advance, public decency,, comfort and convenience require the exercise of those reserved powers of the charter " to make all such necessary ordinances, rules and orders as may tend to the advantage, improvement and good government of the town.” Pee CubiaM. Judgment affirmed.