Browne v. Bentonville

Wood, J., (after stating the facts.) Section 5675 of Kirby’s Digest provides: “In case of the construction of waterworks * * * by any improvement district, the city council, after such works are constructed, shall have full power and authority to operate and maintain the same, instead of the improvement district commissioners, and said city council may supply water to private consumers, and make and collect uniform charges for such service, and apply the income; therefrom to the payment of operating expenses and maintenance of such works.” The maintenance and operation of the waterworks under the above section are governmental functions, in the performance of which the city council must necessarily be invested with judgment and discretion. Conceding that they have the power, by implication, to make additions and extensions to the system as it was 'constructed by the commissioners, it is a power to be exercised at the discretion of the council. The council, for instance, in each case must determine whether the necessity exists for the extension of a main to a particular territory, and what size main is needed, and whether the financial condition of the city will warrant the expenditure. The city fathers in these matters act in a legislative or governmental capacity for the city, and their discretion, exercised in good faith, can not be controlled by mandatory injunction. For the negligence of its council or other agents while performing governmental duties, in the absence of a statute so declaring, .the city is not liable. Board of Directors Improvement Sewer Dist. No. 2 v. Moreland, post p. 380. Nor are the officers themselves liable “for the improper exercise of those discretionary powers. Gray v. Batesville, 74 Ark. 519, and cases cited. The law applicable to such cases is well expressed by Mr. Spelling in his work on Injunctions as follows: “The general rule of noninterference with the exercise of discretionary powers legally conferred applies with exceptional force and appropriateness to municipal bodies having extensive and important trusts of a public character confided to them and being generally vested with important legislative powers. And it is a well settled equitable doctrine that the domain of'discretionary powers conferred upon municipal bodies will in no case be invaded by the courts. This rule is being very strictly adhered to with respect to legislative powers conferred by statute. * * * Nor will courts, when it is found that municipal legislative bodies have acted in good faith and within the scope of the authority conferred upon them, investigate as to the wisdom or expediency of their action, or interfere because in the light of circumstances the court would have acted differently.” 2 Spelling, Injunctions, § 687. The court erred therefore in requiring the appellee to lay a two-inch main opposite the residence of appellant. But, inasmuch as this decree of the court has been already performed by appellee, as is conceded by counsel for both appellant and appellee, neither is prejudiced thereby, and it will be affirmed.