dication of the owner's intention to public right exclusive of his own. (100 So.) create a City of Florence v. Florence Land & Lbr. Co., 204 Ala. 175, 85 South. 516. In E. B'ham Realty Co. v. B'ham Mach. & F. Co., 160 Ala. 461, 49 South. 448, this court said, however: "The existence vel non of the requisite intent is not to be ascertained, * from the purpose 'hidden in the mind of the landowner, but is read by the court from acts of the owner." [8] This cause was tried before the court, the evidence being taken orally, and under the uniform ruling of this court the finding of facts by the chancellor under these circumstances will not be here disturbed, unless it is plainly contrary to the great weight of the evidence. Finney v. Studebaker, 196 Ala. 422, 72 South. 54. [9] There was evidence to support the finding that the respondent gave no indication that the opening up of this street was to be conditioned upon his subsequent acquisition of the title to the Chapman property, but that, so far as the public authorities were concerned, and the public generally, the dedication was unconditional and unequivocal. As said in Stewart v. Conley, supra: "The dedication being completed, no act or declaration of his, after the acceptance, could destroy the rights acquired by the public to use it as a public street." For a distance of 495 feet running north on this avenue, the respondent was the actual owner on the west side. The fact that he did not subsequently acquire the other property, and was not the owner of the Chapman property, and therefore his dedication as to that particular portion of the avenue may prove ineffectual (Hoole v. Atty. Gen., 22 Ala. 190), has no tendency to destroy the dedication of the property which he actually owned, and which dedication has been accepted by the public. There is a suggestion in brief of counsel for appellant of a variance in the allegation and proof, but we are of the opinion that this insistence is without merit. There was ample proof before the chancellor to sustain the decree rendered, and we have reached the conclusion that the finding should not be here disturbed. It results that the decree of the court below will be affirmed. Affirmed. SMITH v. BUGG. (7 Div. 463.) (Supreme Court of Alabama. May 22, 1924.) 1. Evidence 123 (12)-Statements of employees after accident held inadmissible. Statements of employees of railroad several days after plaintiff's hog was killed on track formed no part of res gestæ, and were incompetent against railroad. 2. Negligence 56(1)-Must be proximate cause of injury. Any omission of duty or negligent conduct to be available to plaintiff must be proximate cause of injury. 3. Railroads 443(1)—Finding of no negli gence in killing hog sustained. Finding that railroad was not negligent in killing a hog on its track held sustained by evidence. 4. New trial 102 (1)-Diligence must be shown to discover newly discovered evidence. One seeking new trial on ground of newly discovered evidence must show diligence. Appeal from Circuit Court, Clay County; George F. Smoot, Judge. Action by W. B. Smith against B. L. Bugg, as receiver of the Atlanta, Birmingham & Atlantic Railway Company, for damages for the killing of a hog. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed. Walter S. Smith, of Lineville, for appellant. Pruet & Glass, of Ashland, for appellee. GARDNER, J. Appellant's hog was killed by one of the trains operated by appellee, and this suit was brought to recover damages therefor. The cause was tried upon oral testimony before the court without a jury, resulting in a júdgment for defendant, from which the plaintiff has prosecuted this appeal. [1] The evidence for plaintiff showed the hog was killed by defendant's train, but no circumstances were established. Plaintiff offered to prove what the conductor stated to him several days subsequent in regard to the accident, and also what another employé of defendant stated to one Austin some time subsequent thereto, but such statements formed no part of the res gestæ, and were declarations of agents merely, narrative of a past transaction, and therefore incompetent against the principal. The objection to this proof was properly sustained. Bk. of Phoenix City v. Taylor, 196, Ala. 666, 72 South. 264. [2] Any omission of duty or negligent conANDERSON, C. J., and SAYRE and MIL- duct, to be available to the plaintiff, must, LER, JJ., concur. of course, be the proximate cause of the in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes jury. N. C. & St. L. Ry. v. Jones, 209 Ala. 250, 96 South. 79. [3] Without entering into a discussion or analysis of the evidence, we think the evidence for defendant was sufficient to justify the trial court in finding that there was no negligence in failing to discover the hog earlier, and that after discovery, and when the hog ran upon the track, the engineer did all possible to avoid the injury. True, the engineer states he was traveling 15 or 20 miles per hour, and that it was within the incorporate limits of Lineville, Ala., but he further states it was "open country" there, and it is not made to appear that such speed was contrary to law, and, clearly, the court could find in any event such was not the proximate cause of the accident. This latter observation is likewise applicable to the insistence that it was not testified that the bell was rung and the whistle blown at short intervals, as, indeed, the whistle was blown near this hog, and the evidence tends to show it became frightened thereat and ran across or upon the track. [4] The motion for new trial upon the ground of newly discovered evidence was overruled, and properly so. The proper degree of diligence on plaintiff's part to discover this testimony before the trial was not shown. The few remaining questions have been considered, but are not of sufficient importance to call for discussion, and they very clearly present no reversible error. Finding no reversible error in the record, the judgment will be accordingly af firmed. Affirmed. ANDERSON, C. J., and SAYRE and MILLER, JJ., concur. city and its inhabitants is a usual and necessary power of a municipality, and such power inay be granted in general terms, where there is nothing in the enumeration of particular powers to limit in this particular the operation of the general powers conferred. 3. Municipal corporations 285-City held to have power to erect light and power plant or to grant franchise. Power "to regulate, improve, alter, extend and open streets" (Rev. St. 1892, § 675), "to provide for the lighting of streets of the city or town * * * and to do and perform all such other act or acts as shall seem necessary and best adapted to the improvement and general interest of the city or town" (section 693), and "to raise by tax and assessment upon all real and personal property, and by license on professions, business and occupations carried on within the corporation, all sums of money which may be required for the improvement and good government of the city, and for carrying out the power and duties herein granted and imposed (section 702)," is sufficient to authorize the munici pality to erect and maintain an adequate plant for supplying electric lights and power to the city and its inhabitants, or to make a proper contract with an individual or corporation to do so, and to grant such franchises and pass such ordinances as are necessary and appropriate to accomplish this purpose. 4. Municipal corporations 64-Any proper municipal power may be conferred by statute. Under the provisions of section 8, article 8, of the Constitution, it is competent for the Legislature, by a duly enacted statute, to confer any proper municipal power upon a city or town, where no other provision or principle of 71-Municipality organic law is violated. 5. Municipal corporations may be authorized to prescribe rates for electric light and power. By section 30 of article 16 of the Constitution, irrespective of the provisions of any grant or contract inconsistent therewith, the Legislature may, by statute, empower the duly constituted authorities of the municipality to prescribe, by valid ordinances, just and reason STATE ex rel. BUFORD, Atty. Gen., v. PIN- able rates to be charged for supplying and furELLAS COUNTY POWER CO. nishing electric lights and power to such municipality and its inhabitants by a person or (Supreme Court of Florida. March 17, 1924.) corporation lawfully engaged in rendering such (Syllabus by the Court.) 1. Municipal corporations 272-Power to provide lighting implies right to contract therefor. Power which is sufficient to authorize a municipality to provide for the lighting of the streets and for supplying light to the inhabitants of the municipality implies, in the absence of special restriction, the power to make a proper contract with an individual or corporation therefor. 2. Municipal corporations 272-Authority for lighting city may be granted in general terms. Authority to provide within lawful limitations for supplying and furnishing lights to a service. 6. Contracts 167-Law regulating public service becomes part of contract. Where the law authorizes the regulation of service rendered the public, such law becomes a part of and controls contracts providing for the public service. 7. Electricity 4-Electric light and power franchise held not subject to forfeiture. The duly ordained and otherwise valid franchise of a corporation for a period of 99 years to maintain and operate within the municipality granting such franchise an electric plant or lighting system for the purpose of furnishing electric lights and power to the city and its inhabitants will not be forfeited in quo warranto (100 So.) proceedings upon the ground that the grant is for an unreasonable or unlawful period of time, where it appears that the service rendered is subject to public regulation, that the corporate life of the grantee has not expired; and that the period of time during which the grant has run is less than the maximum term fixed by a subsequently enacted statute for such grants, and especially so where the municipality has stood by and acquiesced in the expenditure by the grantee corporation of large sums of money in the construction and extension of its plant, and has so dealt with the grantee corporation as to estop itself at the time of the institution of the proceedings from asserting the illegality of the franchise upon this ground. Original proceedings in quo warranto by the State, on the relation of Rivers H. Buford, Attorney General, against the Pinellas County Power Company. Demurrer overruled, and information quashed. Mabry, Reaves & Carlton, of Tampa, for relator. Knight, Thompson & Turner, of Tampa, and Cook & Harris, of St. Petersburg, for respondent. "Moreover it is hereby averred that the said attempted grant of franchise by the said Exhibit A for the period of 99 years therein named was and is for an unlawful and unreasonable period of time, and creates a practical perpetuity, and the attempted grant of exclusive rights and of exemption from taxation as specified in said Exhibit A were and are wholly unlawful. All of which said liberties, privileges, and franchises the said respondent, during all the time aforesaid, has usurped, and still does usurp, and unlawfully exercises in the county of Pinellas and city of St. Petersburg, to the damage and prejudice of the people of the state of Florida, and especially of said city." By answer the respondent, Pinellas County Power Company, avers that it is a corporation duly organized under the laws of the state of Florida, its letters patent having been issued on July 18, 1899; "that it is doing business in the city of St. Petersburg under, and by virtue of a certain franchise granted to F. A. Davis and his associates by the town of St. Petersburg, Ordinance No. 3, which was adopted by the town council on December 23, 1896, approved by the mayor on the 24th day of December, 1896, and ratified by a unanimous vote of the freeholders of the town of St. Petersburg at a special election held for that purpose on the 2d day of February, 1897, a certified copy of said franchise being thereto attached, and incor WEST, J. By quo warranto proceedings instituted in this court by the Attorney General in the name of the state against the Pinellas County Power Company, a corporation, the rights and franchises of the respondent to maintain and operate in the city of St. Petersburg an electric plant or light-porated in and made a part of this answer, ing system for the purpose of lighting by electricity the streets, wharves, and public squares of said city and the dwellings, grounds, and places of business of its inhabitants, are assailed, and the respondent is commanded to answer by what authority it exercises the said privileges and franchises. The information, among other things, alleges: "That said respondent claims said privileges, rights, and franchises under and by virtue of a certain supposed grant made by the then town of St. Petersburg in the year 1897, a copy of which is hereto attached, marked Exhibit A, and made a part of this petition. But it is herein averred that said supposed grant was and is null and void, and confers no rights or privileges upon the said respondent, upon the grounds and for the reasons that the said town of St. Petersburg when the said grant was at tempted to be made was a municipal corporation existing under the general laws of the state of Florida for the incorporation of cities and towns, and therefore had no power to grant the franchises and privileges specified in the said Exhibit A hereto attached. And, if any franchises and privileges were lawfully granted thereby, they were for the term of 20 years only from the 2d day of February, 1897, and therefore expired on the 2d day of February, 1917, since which time the assumption of the respondent, who claims under the said supposed grant as a successor in title of F. A. Davis therein named, to exercise the franchises and privileges named in said Exhibit A, has been unlawful and wholly without legal warrant. same being marked Exhibit A, and that said F. A. Davis and his associates, immediately upon the charter being issued to this respondent, as hereinbefore alleged, transferred said franchise to this respondent, and that this respondent has been operating under said franchise since its incorporation, and is still operating under said franchise"; that said town of St. Petersburg had ample authority to grant said franchise under the General Laws of the state of Florida as they existed at the time; that subsequently said incorporation and the acts and doings of the said town of St. Petersburg were validated by general law and that by chapter 6772 of the Special Acts of 1913, revising the charter of the city of St. Petersburg (section 115), all ordinances of said city then in effect were continued in full force; that said Ordinance No. 3, by which said franchise was granted to respondent, has never been repealed, but is of full force and effect. It is denied that such grant is for an unreasonable or unlawful period of time. Any exclusive right under the franchise or any right under the tax exemption clause of the franchise, both of which, so it is averred, have long since expired, are disclaimed, and respondent avers and asserts the right to continue to transact business in the city of St. Petersburg in accordance with the terms of said franchise for the period granted, unless it should be terminated by mutual consent, or unless the property of respondent should be plants, with all the engines, boilers, dynamos, machinery, devices and appliances that may be required for generating electricity or other illuminant and for carrying on the business aforesaid." condemned and purchased under the power, in said town a powerhouse or central plant or of eminent domain, It is further averred that the city of St. Petersburg has neither offered to buy nor attempted to condemn respondent's property, and that respondent has expended more than $1,500,000 in the erection and construction of its plant and equipment, The ordinance also contains a provision has issued and sold in the open market to by which the town of St. Petersburg obligatinnocent purchasers in good faith $1,000,000 ed itself to enter into a contract with the first mortgage bonds secured by its real es- grantee (which contract was embodied in the tate, franchise, and properties, all of which ordinance) for the taking of certain electric was known to the city of St. Petersburg, lights for town lighting for the term of 20 which stood by without objection or ques- years at a fixed price per year per light, and tion, allowing respondent to expend its mon- for the remission of certain portions of town ey and the money of its stockholders and in- taxes upon the plant of the grantee for said vestors in its securities in the erection, ex- period, and said ordinance gives to the gran tension, and maintenance of its plant, and tee the right to enlarge and extend its plant that thereby, and because of various af- and develop its service to meet the growth firmative acts of said city of St. Petersburg and progress of the town, and to make rearegulating the conduct of its business in sonable regulations for the use of lights by said city and various contracts with respond-private parties, and to charge reasonable ent for power for its public utilities and its rates therefor, not to exceed a fixed maxiinhabitants, the said city of St. Petersburg mum schedule of rates. The answer was deis estopped to deny to respondent its further murred to. exercise of the privileges and franchises granted to it by said ordinance. The pertinent provisions of the ordinance referred to in the information and the answer, namely, Ordinance No. 3, under which respondent claims and upon which it relies for its franchise rights and privileges, are as follows: Two questions are presented: First, did the town of St. Petersburg, at the time of the adoption of the ordinance upon which respondent relies, possess the power to grant the franchise asserted? and, second, if so, is the franchise relied on void because granted for an unreasonable and unlawful period of time as alleged? We consider them in the "That the town of St. Petersburg does here-order stated. by give and grant to F. A. Davis, of Philadelphia, Pa., and his associates, who are to organize as a corporation for that purpose under the laws of the state of Florida, by such name as they may choose, and to their successors and assigns, the right and privilege of and franchise for constructing, maintaining and operating, for the period of ninety-nine years, in the said town of St. Petersburg, an electric plant or other lighting system, for the purpose of lighting by electricity or other means, the streets, wharves, and public squares of said town, and the dwellings, grounds and places of business of its inhabitants. "That the said grantees shall have, for the period of twenty years, the exclusive privilege, franchise, power, right and authority to law, construct, erect and maintain, in and upon the streets, squares and wharves of said town, as they now exist, or may hereafter be constructed, opened, laid out, or extended, within the present limits of said town, or within such territory as may hereafter be added to it, all necessary poles or other supports, conductors, or appliances for the poles or other means of conveyance to be used in transmitting electric currents or other illuminating agencies; and for that purpose, to make all necessary excavations in said streets and squares; and shall have the power, right and authority to fasten and to stretch or lay along the line of said poles or other means of conveyance all the wires or other mediums necessary for transmitting and conveying the electric currents or other illuminating agencies to be used in said business; and shall have the right, privilege, and authority to construct, erect and maintain [1] The generally accepted rule is that au thority to a municipality to provide for and supply to its inhabitants water or light, whether derived from an express grant or from the general police power of the city to preserve the public health, public safety, and general welfare, confers upon the munici pality authority to contract with an individual or corporation for a supply of water or light, and "any power which is sufficient to authorize the city to provide a supply of water or light implies, in the absence of special restriction, the power to make a proper contract with an individual or corpora tion therefor." Dillon's Municipal Corpora. tions (5th Ed.) § 1302; Lexington ex rel. v. Lafayette County Bank, 165 Mo. 671, 65 S. W. 943; Gas Co. v. Davenport, 124 Iowa, 22, 98 N. W. 892; East Jordan Lbr. Co. v. East Jordan, 100 Mich. 201, 58 N. W. 1012; Green. ville v. Greenville Water Works Co., 125 Ala. 625, 27 South. 764; Overall v. Madisonville, 125 Ky. 684, 102 S. W. 278, 12 L R. A. (N. S.) 433.< In Overall v. Madisonville, supra, the court said: "The public lighting of the streets of cities is of modern origin. Yet the necessity for lights in a city is scarcely less now than its necessity for water. Indeed, private wells and cisterns, and resort to natural streams by individuals for their necessary water, could as easily dispense with public waterworks, and more justly perhaps, than could private prop Fla.) STATE v. PINELLAS COUNTY POWER CO. erty owners light the adjacent streets and pub- [2] In State ex rel. v. Tampa Water Works Co., 56 Fla. 858, 47 South. 358, 19 L. R. A. (N. S.) 183, this court said: lights or water works companies for lighting the streets or constructing and operating water works in such city or town; provided, that such agreement or agreements shall be ratified by a majority vote of the freeholders of such city or town, and voting at an election to be held for the purpose of ratifying said agreement or agreements." Such grants of power to the municipality are sufficient basis for the ordinance, and its adoption in the manner required is not disputed. Capitol City Light Co. v. Tallahassee, 42 Fla. 462, 28 South. 810; Mernaugh v. Orlando, 41 Fla. 433, 27 South. 34; Jacksonville Electric Co. v. Jacksonville, 36 Fla. 229, 18 South. 677, 30 L. R. A. 540, 51 Am. St. "Among the usual functions of a municipal Rep. 24; State ex rel. v. Jacksonville Street government are those of granting privileges in Ry. Co., 29 Fla. 590, 10 South. 590. The futhe use of its streets for the purpose of rendering services of a public nature, such as fur-tile attempt to make the franchise exclusive nishing the municipality and its inhabitants or to exempt property of respondent from service necessary or useful for the common wel- taxation does not vitiate the grant. State ex fare of all. The furnishing of water for use rel. v. Tampa Water Works Co., supra. Be and for fire protection is a service necessary sides, the time within which such provisions or useful for the individual and collective well-were to operate has expired. being of a city and its inhabitants. Authority 'to make provisions within lawful limitations for securing or furnishing to a city and its in-years render the franchise void because for habitants an abundant supply of good water for all purposes, is a usual and necessary power of a municipality, and such power may be included in powers given in general terms, where there is nothing in the enumeration of particular powers conferred to limit in this particular the operation of the general powers conferred." [4-6] Does the grant for a period of 99 an unreasonable length of time and require a holding to that effect, although less than 30 years of that period have elapsed? In some jurisdictions the period for which such franchise may be granted is fixed by Constitution or statutory or charter provision. At the time of the grant to respondent of the franchise challenged in this proceeding, chap[3] The general laws of the state for the ter 4859, Acts of 1899, forbidding the grantincorporation of cities and towns, under ing by municipalities of franchises or rights which the town of St. Petersburg was creat- for certain purposes for any time exceeding ed, conferred upon such corporations "full 30 years, or without reserving the right at power and authority to take and to hold and after the expiration of such term to purproperty, real and personal and mixed, and chase the property used under such franto control and dispose of the same for the chise, was of course not in existence. Nor is benefit and best interests of the corporation there express inhibition in the state Conaforesaid, to sue and be sued, implead and stitution against the granting by a municibe impleaded, and to do all such other acts pality of a franchise in perpetuity. On the and things as are incident to corporate bod- contrary, with respect to municipalities, the ies" (section 665, Rev. Stat. 1892); "to regu- Legislature has the power to "provide for late, improve, alter, extend and open streets" their government, to prescribe their jurisdic(section 675, Rev. Stat.); "to provide for the tion and powers, and to alter or amend the lighting of streets of the city or town same at any time." Section 8, art. 8, Const. and to do and perform all such oth- And by section 30 of article 16 of the Constier act or acts as shall seem necessary and tution, irrespective of the provision of any best adapted to the improvement and general grant or contract inconsistent therewith, the interest of the city or town" (section 693, Legislature has "full power to pass laws for the correction of abuses and to prevent unRev. Stat.); and "to raise by tax and assessment upon all real and personal proper- just discrimination and excessive charges by ty, and by license on professions, business persons and corporations * services of a public naand occupations carried on within the corforming poration, all 'sums of money which may be ture." Tampa v. Tampa Water Works Co., required for the improvement and good gov-45 Fla. 600, 34 South. 631; Gainesville G. & ernment of the city, and for carrying out the power and duties herein granted and imposed" (section 702, Rev. Stat.). * * per E. Co. v. Gainesville, 63 Fla. 425, 58 South. 785; Town of Brooksville v. Florida Tel. Co., 81 Fla. 436, 88 South. 307. In some jurisdictions, including the Supreme Court of the United States, it is held that a franchise to a public service corpora In addition to the foregoing, chapter 4166, Acts of 1893, provided that "the council of any city or town of this state is hereby authorized and empowered to enter into an [agreement or agreements with gas, electric tion in which no time for expiration of the |