or subject to employment will be sold for commercial purposes; and (c) that the cost of the contemplated plant, with transmission lines-a sum substantially equal to the amount of the proposed bond issue-will very greatly exceed the moderate cost of the energy (electrically generated by the present steam plant) to operate the water system at this or any other time. Consistent with the principles earlier stated in this opinion, the pleader's conclusion, denying the good faith of the city government in the premises, is to be measured by the facts to which it is referable for support.

contended for the plaintiff (taxpayer) that "the size of the market house erected by the defendants was extravagant and disproportionate to the population of the town," viz. 17,000 at the time. In reference to the contention indicated the court said:

"It was further contended, in the present case, that even if the town had authority to assess money for building a market house, yet that it would not justify the present tax, because a part of the building was appropriated to other subjects. If this had been a colorable act, under the pretense of exercising a legal power, looking to other and distinct objects beyond the scope of the principal one, it might be treated as the abuse of power, and a nullity. conclusion, in the present case. But we perceive no evidence to justify such a The building of a market house was the principal and leading object, and every thing else seems to have been incidental and subordinate. We cannot | therefore say that it was such an excess of authority as to invalidate the acts, which they might rightfully do. As to the size and other circumstances of the building, if the accomplish

[8] Aside from the debt limit provisions of the Constitution, there is, so far as we can discover, no restriction in our laws upon the municipality with respect to the cost or magnitude of an authorized municipal improvement or facility. That is left to the validly exercised discretion of the local government. This view is sanctioned by the fact that section 225 of the Constitution exempts "schoolhouses, waterworks and sewers" from the restraint imposed upon indebt-ment of the object was within the scope of the edness ("obligations") by that section of the organic law. A fraudulent or grossly abusive exercise of the discretion in this respect could be thwarted by the courts (Avery v. Job, 25 Or. 512, 524, 525, 36 Pac. 293)-an invalidating circumstance, not averred or inferably suggested in the bill, the value of the proposed plant and transmission lines being substantially equivalent to the cost thereof under the plans and specifications made by the engineers. Hence neither the mere magnitude of the development nor the mere cost of it contributes anything toward impeaching the good faith of the city government in the premises.

corporate powers of the town, the corporation building for its objects, and it is not compeitself was the proper judge of the fitness of the tent in this suit to inquire whether it was a larger and more expensive building, than the exigencies of the city required." (Italics supplied.)

As appears, the court there affirmed, without qualification, that the discretion as to size and cost of the building was not subject to inquiry in that action, an action to recover taxes paid; that, if the scheme had been wholly void, the plaintiff would have been entitled to recover. It is evident, therefore, that the court found no warrant in the "size" and "expense" of the structure, even when contrasted with previous conditions, to conclude that fraud or abuse of discretion characterized the action of the municipal government in the premises.

Analogous support for this conclusion is afforded by Spaulding v. Lowell, 23 Pick. (Mass.) 71, 80, Shaw, C. J., writing, and by Kaukauna Co. v. Green Bay, etc., Canal, 142 U. S. 254, 273-276, 12 Sup. Ct. 173, 35 L. Ed. 1004. In the Spaulding-Lowell Case In Kaukauna Co. v. Green Bay, etc., Canal, the primary question was whether the city supra, a material question was the right, had power, inferentially, not expressly, grant- under eminent domain, to appropriate private ed, to construct and maintain a "market property for the public use involved in the house." The power was affirmed, and the improvement of navigation by dams and means to provide a market house was held canals, the legislation by the state (Wisconto be a lawful charge assessable upon the sin) retaining the right to surplus water or inhabitants of the municipality. A com- water power created by the improvement paratively large sum was appropriated and contemplated, with a view to the sale or applied to the purchase of a lot and the lease of such excess water or water power building of a two-story house, the first floor for private consumption or use. This rebeing devoted to market house purposes, and tention of control and right over and in the the second in part only (at the time of com- excess water or water power by the state pletion) to a seat for a municipal court, gave rise to a question having features comwhich, prior thereto, had been housed else- mon, in a degree at least, to that now under where at an annual municipal expense of consideration. The court, after citing sev$100. Lowell had, previously, a "commodi-eral adjudications, approved the principle ous town house." The cost of the market house was $46,000. Later the county's courts occupied two-thirds of the second story of

and pronouncement in Spaulding v. Lowell, supra, and then made observations that are pertinent to the inquiry of good faith in the

(93 So.)

sive in the circumstances with which this | ton Iron Co. v. Dye, 87 Ala. 468, 471, 6 South. court is now concerned. It was said:

"The true distinction seems to be between

cases where the dam is erected for the express or apparent purpose of obtaining a water power to lease to private individuals, or where in building a dam for a public improvement, a wholly unnecessary excess of water is created, and cases where the surplus is a mere incident to the public improvement and a reasonable provision for securing an adequate supply of water at all times for such improvement."

"So long as the dam was erected for the bona fide purpose of furnishing an adequate supply of water for the canal, and not a colorable device for creating a water power, the agents of the state are entitled to great latitude of discretion in regard to the height of the dam and the head of water to be created, and while the surplus in this case may be unnecessarily large, there does not seem to have been any bad faith or abuse of discretion on the part of those charged with the construction of the improvement. Courts should not scan too jealously their conduct in this connection, if there be no reason to doubt that they were animated solely by a desire to promote the public interests, nor can they undertake to measure with nicety the exact amount of water required for the purposes of the public improvement. Under the circumstances of this case, we think it within the power of the state to retain within its immediate control such surplus as might incidentally be created by the erection of the dam."

192), is only limited by the exaction of good faith, to avoid fraud or palpable abuse of its discretion in the premises. Authorities

supra.

When good faith in the exercise of a discretion of this character and in these circumstances is manifested, or when fraud or abuse of such discretion is shown, are necessarily chiefly matters of opinion, at

least until the circumstances disclose such a departure from reason and relation as to After stating that no claim was made that shock the judgment, to indicate an improper the "water power was created for" commer- motive. In so far as the amount of electric cial purposes, or that the structure was de-energy to be developed by this improvement signed unreasonably to create an unneces--4,000 horse power-is a factor, it cannot sary head of water for the purposes of navi- be affirmed that bad faith or abuse of disgation at all seasons of the year, the court cretion characterized the city government's concluded as follows: determination to construct a plant capable of generating that amount of energy. The excess over present needs is great; but, notwithstanding the pleader's prophecy that never more than 900 horse power will be required to operate any water system Dothan may maintain, who can affirm, with reasonable confidence, that in the prospective growth and development of Dothan much more energy may not be required efficiently to serve its water system? In the Kaukauna Case the court, while admitting the creation of an "unnecessarily large" surplus of water or water power, declined to attribute to the authorities any bad faith or abuse of discretion in the premises. Given a purpose to substitute electric power generated through water power for that generated by steam, it may well be that principles of economy require the creation of a water head greater than the minimum possible of creation at the same site. The cost, as well as the uncertainty of a constant supply, of fuel for the generation of steam, are factors that might reasonably contribute to the city government's determination in the premises. Again, the largely automatic character of the process of generating energy through a hydroelectric plant is likewise a consideration to which a government might attach influence in adopting that means for energizing its utilities.

[9, 10] It is further insisted that the hydroelectric plant will generate a very large excess of energy over present or future needs of the municipality in the operation of the water system, and that the municipal design is to sell such excess for private employment and municipal gain. The averments of the bill are that the maximum energy required at this time is 550 horse power, now furnished by electricity generated by the steam plant, and that about 900 horse power is the maximum of any future re- [11] The point, among those before enuquirement to operate the water system, how-merated, more positively asserted as evidencever enlarged or expanded. That the city ing the perversion of the discretion in quesgovernment has committed to it the discretion tion, is that the municipality's major purto choose or to change the character or source pose and objective is to commercialize the exof energy to operate the water system can- cess energy for the financial benefit of the not be questioned. The extent the govern- city. In McDonald v. Ward, 201 Ala. 245, ment may go in exercising its discretion in 246, 247, 77 South. 835, this court adopted respect of better service or more economical the pertinent doctrine of Bates v. Bassett, operation of the water system, or in reason- 60 Vt. 530, 15 Atl. 200, 1 L. R. A. 166, and ably anticipating the future requirements Overall v. Madisonville, 102 S. W. 278, 31 of a water system for a municipality that Ky. Law Rep. 278, 12 L. R. A. (N. S.) 433. has already rapidly increased in population The effect of that decision and of those just and material growth (a circumstance of noted is that, if the primary purpose of the which judicial notice is taken-Wight v. municipal government in exercising its disWolff, 112 Ga. 169, 37 S. E. 395, 396; Clif- cretion is to serve an authorized municipal

on the "proceeds" resulting from the effective issuance of the obligations contemplated. It is a limitation on the power of disbursement or application, not upon the power to create "obligations" for an authorized purpose-in this instance to improve a waterworks system.

purpose, the incidental excess product of the operation may be lawfully sold for private consumption. The converse, as a primary purpose, would require that the scheme be condemned as an abuse of discretion. The measure of the excess to be produced may, if great enough, afford indicia of abuse or of bad faith in the exercise of the discre- [13] The separate elements, indicating the tion. What that measure of excess product bill's theory that the scheme is a manifestashould be to invite or justify the imputation tion of a bad faith or abuse of discretion of bad faith or abuse in exercising a com- in the premises, have been separately conmitted discretion is not susceptible of def-sidered. In combination they likewise fail inition. Treating an inquiry of like nature, to support or justify the charge of bad faith it was said in U. S. v. Chandler, 229 U. S. 53, 73, 33 Sup. Ct. 667, 676 (57 L. Ed. 1063): "If the primary purpose is legitimate, we can see no sound objection to leasing any excess of power over the needs of the government."

or abuse of discretion asserted in the bill. Presumably the city government intended and intends, in this matter, to observe, in good faith, the Constitution and laws of the state. That presumption is not dissipated by the averments of the bill. Bad faith cannot be imputed without substantial reason. The indebtedness to be incurred is to be devoted to a public, not a private, purpose, and the surplus of valuable energy, above the requirements of the water system, to be created is to be conserved from waste by sale of it to moderate the public burden that the construction of the hydroelectric plant must entail.

[14] The bill is without equity, as the court below decided. Since a bill without equity will not support a temporary injunction or invite its issuance, the court likewise correctly refused the temporary injunction prayed.

The decree in both cases is affirmed.
Affirmed.

All the Justices concur.

Manifestly the merely consequential creation of an excess does not indicate the entertainment of an illegal purpose, and, as pronounced in the Kaukauna Case, the creation of an “unnecessarily large" surplus does not justify a conclusion that bad faith or abuse of discretion characterizes the action of those in whom the discretion is reposed. The excess of electric energy to be produced by the plant at Chalker's Bluff is large, we may say unnecessarily large, when measured by present municipal needs. The municipality may, however, anticipate future expansion and increasing requirements in providing for energy to operate its water system that, presumably, must keep pace with the expanding necessities of a rapidly growing community. Those now charged with the duty and invested with the discretionary power to provide a water system may look forward to conditions that coming years may create, and build now to meet the anticipated requirements of that time. ALABAMA POWER CO. v. CONINE et al. Invested with a sound discretion in the premises a discretion that includes provision for a water system to serve in years to come -it cannot be affirmed, of or from the fact that a large surplus energy will be created by this development to be sold for private consumption, that the primary purpose inspiring this undertaking is not to improve the municipal water system through more economical, steadier, and greater motive power, nor that bad faith or abuse of the discretion reposed characterized the city government's action in the premises.

(5 Div. 809.)

(Supreme Court of Alabama. Jan. 19, 1922. Rehearing Denied May 4, 1922.)

1. Master and servant 329-Averment of negligence of defendant by servants sufficient, without allegation of scope of employment.

In an action for wrongful death, a count averring that defendant by its servants, agents, or employees, negligently committed the act averring that the act was in the line and scope causing death, is sufficient, without further of employment.

2. Master and servant 329-Count averring negligence of defendant's servants must aver scope of employment.

[12] Stress is laid in the brief for appellant upon the provisions of section 225 of the Constitution stipulating that the "proceeds of all obligations issued as herein provided" In an action for wrongful death, a count shall not be used for any other purpose than in the complaint averring that the act comthat for which they were issued. The whole plained of was negligently permitted by defendants, its agents, servants, or employees, but object of this provision was to assure faith- failing to aver that the agents, servants, or ful devotion of the "proceeds" of the obliga- employees were at the time acting in the line tions to the purpose or object of their is- and scope of their employment, was defective, This provision is only operative up-and vulnerable to demurrer.

suance.

3. Master and servant

(93 So.)

negligence of defendant's agent must be supported by proof of scope of employment,

In an action for wrongful death, a count in the complaint averring negligence of defendant's agent must be supported by proof that the agent was acting at the time in the line and scope of his employment on the duties under his employment.

4. Trial 145-Error to refuse general affirmative charge as to count, where material averments not proved.

Where the evidence did not prove or tend to prove all the material averments of one of the counts in the complaint, it was error to refuse the general affirmative charge as to that count. 5. Master and servant

300-Relation and act within employment essential to employer's liability to third person.

329-Count averring death of W. M. Conine. The wires were strung on poles in the streets of the town. About 2 o'clock in the morning a fire occurred in a pressing room building in the town. The fire from the building burned in two the wires of appellant strung on the poles in the street. The ends of the wires then fell on the ground. One E. H. Rodgers was local manager of defendant at that place. He severed some of the wires that were on the ground while the building was burning, so they would hang from the poles out of reach of persons passing. There was one or more wires left down on the ground. This agent of defendant assured some witnesses there was no further danger from the wires remaining on the ground. Conditions remained unchanged as to the wires until about 7 o'clock in the morning, when a wire on the ground was discovered to be charged with electricity. Plaintiff's intestate was informed of it, and he immediately notified Rodgers, defendant's agent, and together they immediately went to the wire. Rodgers assured Conine there was no danger in the wire. Rodgers picked up one of the wires and quivered. Conine grabbed a piece of paper and caught hold of the wire. Some of the witnesses testified that Conine fell first and died, and that then Rodgers fell, and afterwards died; others testified that Rodgers fell first, holding the wire, then Conine caught it, fell, and died. This was the tendency of some of the evidence. There are eight counts in the complaint. Demurrers were 100-Contributory negligence assigned to each. The court overruled the demurrers to each court.

To fix liability against a defendant for death by wrongful act of his servants, agents, or employees, the relationship of defendant and the alleged wrongdoers must exist at the time of the wrong, and the wrongful act must be within the scope of the agents' or servants' authority.

6. Action 38 (4) - Pleading in action for wrongful death held not bad, as joining charge of willful injury with simple negligence.

In an action for wrongful death, counts of the complaint, averring that defendant intentionally or willfully left a wire in the public street charged with a high and dangerous voltage of electricity, held not demurrable, as joining a charge of willful injury with a charge of simple negligence. 7. Negligence

no answer to wanton count.

A plea of contributory negligence is no answer to a wanton count.

[1] Counts 1, 2, 3, and 4 charge simple negligence. Counts 1 and 2 each aver defendant, by its servants, agents, or employés,

Appeal from Circuit Court, Tallapoosa negligently committed the act complained of, County; Lum Duke, Judge.

Action by Alberta G. Conine and another, as the personal representatives of the estate of W. M. Conine, deceased, against the Alabama Power Company, for the death of their decedent. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

N. D. Denson & Sons, of Opelika, J. Percy Oliver, of Dadeville, and Perry W. Turner, of Birmingham, for appellant.

which caused the death of plaintiff's intestate. When it is so alleged, it is not necessary to aver the act was omitted or committed by the servant, agent, or employé while acting in the line and scope of his employment. When the defendant does the negligent act by its servant, this includes done in the line and scope of the servant's employment. Such averment is quite different from an allegation that it was done by defendant, its agent, or servant. He may have

James W. Strother and Thomas L. Bulger, been defendant's servant, but not acting for both of Dadeville, for appellees.

MILLER, J. This suit is under the homicide statute. Section 2486, Code 1907. It is by the administrator and administratrix of the estate of W. M. Conine, deceased, against the Alabama Power Company. There was judgment for the plaintiff, and the defendant appeals.

Appellant was operating an electric light distributing system in the town of Camp Hill at the time of the injury causing the

and in the line and scope of his employment, at the time of the injury. Demurrers assigned to counts 1 and 2 were properly overruled.

[2] Count 3 avers the act complained of was negligently permitted by defendant, its agents, servants, or employés, but fails to aver the agents, servants, or employés were at the time acting in the line and scope of their employment. This was necessary under these averments. Addington v. Am. Cast. Co., 186 Ala. 92, 64 South. 614. The court

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

erred in overruling the demurrers to this The averment that defendant's servant comcount, numbered 3.

ant by its servant, agent, or employé. The suit is against the defendant, and not against its servant. To fix liability, the relation of principal and agent, or master and servant, must exist at the time of the wrong, and the wrongful act, moreover, must be within the scope of the agent's or servant's authority. Jones v. Strickland, 201 Ala. 138, 77 South. 562. The demurrers pointed out these defects in this count, and they should have been sustained.

mitted the wanton and wrongful act is not [3] Count 4 avers "the defendant by its the same as an averment that the defendservants, agent or employés negligently per- ant, by its servant, committed the wanton mitted," etc., and it also alleges that Conine's and wrongful act. The wanton wrong of dedeath was proximately caused by reason of fendant's servant is not the same as the negligence of J. M. Barry, "who was in the wanton wrong of defendant by its servant. service or employment of defendant, and The count may state a cause of action against while acting within the scope of his employ-defendant's servant, agent, or employé, but ment, or of his duties under his employment," it does not clearly do so against the defendetc. The count must be construed as a whole, and when it is, it will not be subject to that demurrer. This count, No. 4, under the evidence, was submitted to the jury. It charges that J. M. Barry was agent of defendant, that plaintiff's intestate's death was caused by his negligence, and that he was acting in the line and scope of his employment or duties under his employment at the time of the injury. These allegations were material. The burden of proving them is on the plaintiffs (T. C. I. & R. Co. v. Hamilton, 100 Ala. 252, 14 South. 167, 46 Am. St. Rep. 48); the general issue having been pleaded by the defendant. The proof fails to show that J. M. Barry was in any way connected with the defendant. No evidence indicates that he was an agent, servant, or employé of the defendant. The entire evidence points to and names E. H. Rodgers as the agent of defendant, keeping up its wires, managing its business at that place, at the time of the in-line and scope of his duties under his emjury.

ror.

[4] The defendant asked the court to give in its favor the general affirmative charge as to count No. 4. The charge was in writing. It was refused by the court. This was erThe evidence did not prove, or tend to prove, all of the material averments of this count; hence that charge should have been given., Hatch v. Varner, 150 Ala. 440, 43 South. 481; Tobler v. Pioneer Min. & Mfg. Co., 166 Ala. 482, 52 South. 86.

[5] Count 5 is denominated a wanton count. It is defective in failing to aver the wanton act of defendant was done by its agent or servant or employé, while acting in the line and scope of his employment, or that defendant's plant at the time and place of the wanton act was in control, charge, or management of the servant, agent, or employé of defendant. Jones v. Strickland, 201 Ala. 138, 77 South. 562; Addington v. Am. Casting Co., 186 Ala. 92, 64 South. 614; Palos Coal & Coke Co. v. Benson, 145 Ala. 664, 39 South. 727; Morrison v. Clark, 196 Ala. 670, 72 South. 305. This count, No. 5, avers "defendant's servants, agents, or employés, or some one in the employment of defendant," committed the act, and it avers "that the death of plaintiffs' intestate was proximately caused by reason of the wanton, willful wrong of defendant's servants, agents, or employés," etc. It does not aver that defendant, by its servants, agents, or employés,

[6] Counts 6 and 8 do not join a charge of willful injury with a charge of simple negligence. They charge that the wire was intentionally or willfully left in the public street, charged with a high and dangerous voltage of electricity. Each count is a wanton count; when each is construed as a whole, neither is subject to the demurrers.

Count 7 charges that defendant, by its servant or agent, while acting within the

ployment, willfully or knowingly left in the public street a wire charged with a high and dangerous voltage of electricity, and it also avers that "the death of plaintiffs' intestate was proximately caused by reason of the wanton, willful, or intentional wrong of the servant, agent, or employé of the defendant, to wit, E. H. Rodgers, whose duty it was to look after and manage defendant's said business and electric wires at said place, in failing to cut off the electric current from said wire while it was on the ground in a public place in said town, knowing the wire was charged with a high and dangerous voltage of electricity. This count conjunctively charges that the wire was willfully or knowingly permitted to remain on the ground, charged with a dangerous current, and with a willful wrong in failing to cut off the electric. current from the wire, knowing it was charged with a dangerous voltage of electricity. It does not combine wanton and simple negligence in the same count, and is not subject to the demurrers assigned to it. Taken as a whole this count charges wanton negligence.

Counts 3 and 5 being defective, each subject to the demurrers, we need not pass on the rulings of the court on the pleas filed to them. Count 4 goes out under the general charge, as some material averments therein were not supported by any evidence.

[7] A contributory negligence plea is no