I do not join in the views of Mr. Justice BUSHNELL.
Municipal charters, together with all laws and ordinances relating to municipal concerns, are subject to the provisions of the Constitution and the general laws of the State. Const. of 1908, art. 8, § 21.
The Constitution, in section 23 of the mentioned article, empowers cities to acquire, own and operate, "public utilities for supplying water, light, heat, *Page 15 power and transportation to the municipality and the inhabitants thereof." If supplying fuel falls within the term "heat" then it must be classed as a public utility and regulated by law on that subject.
The reasoning of my Brother that power to furnish heat from a city public utility plant carries power to supply fuel for the creation of heat was a thought carried in Laughlin v. Cityof Portland, 111 Me. 486 (90 A. 318, 51 L.R.A. [N. S.] 1143, Ann. Cas. 1916C, 734), but the thought had legislative backing in that case, for the statute of Maine provided:
"Any city or town is hereby authorized and empowered to establish and maintain within its limits, a permanent wood, coal and fuel yard, for the purpose of selling, at cost, wood, coal and fuel to its inhabitants. The term 'at cost' as used herein, shall be construed as meaning without financial profit." Pub. Laws, 1903, chap. 122 (R. S. chap. 4, § 87).
The Maine court reasoned:
"Can it make any real and vital difference and convert a public into a private use if instead of burning the fuel at the power station to produce the electricity, or at the central heating plant to produce the heat and then conducting it in the one case by wires and in the other by pipes to the user's home, the coal itself is hauled over the same highway to the same point of distribution?"
It may be conceded that, under the authority ofJones v. City of Portland, 245 U.S. 217 (38 Sup. Ct. 112, L.R.A. 1918C, 765, Ann. Cas. 1918E, 660), if compatible with the Constitution, the legislature may authorize a municipality to establish a public yard for the sale of coal or other fuel.
"It is a general and undisputed proposition of law that amunicipal corporation possesses and can exercise *Page 16 the following powers, and no others: First, those granted inexpress words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation, — not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied." 1 Dillon, Municipal Corporations (5th Ed.), § 237.
It may be that in case of a real emergency, and in order to prevent general suffering from lack of obtainable fuel, the municipality may supply such essential need under the justification of overruling public necessity; but, even in such case, the law is only temporarily mute and the silence, so imposed, is not an extension of power. It is but an instance within the maxim "Necessitas vincit legem." The control ends when real justification ceases. It is only a charitable obscuration of existing law.
In Baker v. City of Grand Rapids, 142 Mich. 687, it appeared that:
"In January, 1903, the supply of coal in the city of Grand Rapids was limited, with prospects of great scarcity. Citizens could not readily obtain a necessary quantity for household purposes."
Commissioners, appointed by the council, purchased coal and disposed of it in the following manner:
"Paupers were furnished coal free. Those poor people who could pay something for coal furnished were required to do so. Coal was also sold at cost to those citizens who could not get any elsewhere." *Page 17
The court held:
"The city authorities had the right, through the board of poor commissioners, to provide fuel for needy citizens, and under the then existing emergency, where a coal famine appeared imminent, were authorized to purchase such an amount of fuel in any market, as, in their opinion, would be necessary for that purpose. A municipality, however, cannot enter into a commercial enterprise, such as buying and selling coal to its citizens as a business thereby entering into competition with dealers in coal. Such use of moneys is held not to be for a public purpose. Opinion of the Justices, 155 Mass. 601 (30 N.E. 1142, 15 L.R.A. 809), and cases cited."
It is true the bill in that case was dismissed on the ground that it did not appear the court had jurisdiction to restrain the proceeding in the absence of a showing that the activity might have resulted in a tax upon plaintiff's property amounting to $100 or more (Act No. 183, Pub. Acts 1903). In that case the reason for denying restraint of adjudicated unauthorized municipal action did not at all eliminate the mentioned holding. Act No. 183, Pub. Acts 1903, was repealed by Act No. 216, Pub. Acts 1905.
In the case at bar plaintiff desires to engage in a legitimate private business and has a right to be free from the unauthorized proprietary business activity of the municipality.
The decree is reversed and one will be entered here in accordance with this opinion. No costs.
FEAD, C.J., and NORTH, BUTZEL, SHARPE, and POTTER, JJ., concurred with WIEST, J. *Page 18