insurance above referred to is legal and within the powers of the city, then the court is asked to decree that said Bank of Commerce & Trust Company, as trustee, pay to the Equitable Life Assurance Society the insurance premiums in its possession under said trust agreement, and pay to the beneficiaries or to the water department of the city of Memphis for the benefit of the beneficiaries entitled thereto any amounts paid by said assurance society to said trustees on account of the death of or injury to any of the employees covered by said insur ance. "Signed at Memphis, Tennessee, this 25th day of May, A. D. 1922.” The certificate issued by the insurance company for each employee, and delivered by the water company to each employee, contains the following recital: "To Employees of the Memphis Artesian Water Department: "This certificate certificate of insurance comes to you without charge, and, in the event of your death while in the employ of this department, your beneficiary will be paid the amount of this certificate plus such additional amount for each year of service as is indicated on the table printed on the opposite page. "Recognizing our mutuality of interests, we hope many may obtain through this insurance a provision for those dear to them, which might otherwise be expensive, or perhaps, in some cases, impossible. "Yours very truly, "Memphis Artesian Water De- "by Sanford Morison, Secre- Upon an employee leaving the service of the water department, the insurance as to him terminates, but he may, without examination as to condition of health, moral standing, etc., procure insurance of a like amount by paying the extra premium provided therefor to the insurance company, and thus continue city. tended that the city was without For the complainants it is confunds received from the sale of wapower and authority to appropriate ter to pay premiums on said policies following provisions of the Constiof insurance, and they rely upon the tution of Tennessee, to wit: Art. 1, § 21, art. 2, § 28, art. 2, § 24, art. 1, § 8, and art. 11, § 8. sections of the Constitution into this Without copying the foregoing opinion, it might be said that, in relying upon all of said provisions, the complainants make the one point that the application of said funds by the water department to the payment of said premiums of insurance is an appropriation of public funds for a private purpose. Since it is conceded by counsel for the defendants that the operation of said water plant is a public function, and that the money received for water is a public fund, it will not be ing upon this question. necessary to discuss our cases bear It is contended by the complainants that this action of the city cannot be sustained under the police power provision of the Constitution, it being contended that the issuance of said policy and the payment of tion, either directly or indirectly, to the premium therefor have no relahealth, the public morals, or the genthe improvement of the public the city of Memphis. eral welfare of either the state or Upon the other hand, it is insisted paratively small appropriation the by the defendants that by this comcity is better enabled to retain skilled employees in its service, and is thereby better capacitated to furnish the inhabitants of the city at all times with an adequate supply of pure, wholesome water. While some criticism is made as to the interpretation of certain provisions of the stipulation relative to the beneficial results experienced by the city as a result of investing in opinion that, taking the agreement said group insurance, we are of the (Tenn., 251 S. W. 46.) as a whole, it must be, at least, assumed that in the judgment of the commissioners better and more efficient service has resulted on the part of the employees, and that they are better satisfied, and are more likely to remain in the employ of the city. The right to fix the wages of employees inheres in the city, and when, in its judgment, conditions justify an increase in wages, it has the power to authorize such increase. The act under which the water department functions authorizes the city to fix the compensation of its employees. In 28 Cyc. 601, it is said: "Unless such change is prohibited by the Constitution, statutes, or charter provisions, the power vested in a municipal board or officer to fix the compensation of a municipal agent or employee generally includes the power to increase or reduce the salary or wages of such agents or employees." It could hardly be contended but that the governing powers would have the right to increase the annual wages of each employee of the water department $18 per annum, if justified by existing conditions. This, in effect, is what it did when it took out said policy of group insurance, but from an economic basis it concluded that better results would be obtained as to both parties by investing it in insurance instead of paying the money to the employee. Ordinarily, what can be done indirectly can be done directly. If a city can increase the wages of its employees, why not invest the increase in insurance for them, instead of paying it to them direct, if, by so doing, they are better satisfied and the city obtains better service? The large enterprises of this country have reached a wonderful condition of economic efficiency, and, according to the stipulation, they are adopting the group insurance system for the benefit of their employees. If it is beneficial to them, why would it not be beneficial to our municipalities? While we are not concerned with the policy of the governing authorities of our municipalities, the foregoing observation meets the argument that if this action is sustained all other municipalities will adopt this policy. To this there can be no objection, if, as an economic measure, it is to the best interest of the municipalities to adopt it. There is no law requiring municipalities to provide its employees with such insurance, and it will not be presumed that they will do so unless they receive a benefit therefrom; and should it fail to produce the anticipated results, it can be discontinued at any time. Certainly such an investment is of benefit to the wage earner. Ordinarily the wages of such an employee are insufficient to enable him to adequately provide for his family after death. In this case, the family of John Wilton, a valued employee of the city, will receive $2,000, which may prove a very present help in time of need. This system may not only provide better service and more wholesome water, but it may relieve the city and county of the expense of caring for dependent families of deceased employees. Upon the principle here involved that is, of better and continued service, and more wholesome water -various courts have sustained statutes requiring cities to pension. firemen and policemen. Such an act was sustained in State ex rel. Haberlan v. Love, 89 Neb. 149, 34 L.R.A. (N.S.) 607, 131 N. W. 196, Ann. Cas, 1912C, 544, the court saying: "A firemen's pension may be classified as part of his compensation for services rendered, or it may be said. that it is paid to him for the purpose of stimulating all those engaged in a like public duty to prevent and suppress the destruction of property and the loss of human life incident to those conflagrations which the utmost vigilance may minimize, but cannot entirely prevent, in populous cities. Within whichever class the pension may fall, public funds may be appropriated in con formity with legislative authority to pay the fireman, and the money is thereby expended for a public purpose." Further on in the opinion the court said: "In applying these limitations to the instant case, it may be conceded that the pension forms an inducement to the individual to enter and remain in the service of the fire department, and that the pension, in a sense, is part of the compensation paid for those services." McQuillin, in his work on Municipal Corporations, § 2169, says: "On the other hand, municipal appropriations to a fireman's relief association have been held proper, and a municipality may appropriate money to a corporation to create a fund to pension police officers, since this is a strictly municipal use. So, a municipality may pension policemen, where injured, or after a certain period of service. So, aid to a college, and appropriations for incorporated homes for friendless women, or for industrial expositions, or to secure the location near the city of a state reform school to which it may send its youthful offenders, have been held proper. Sending the Liberty bell to an exposition has been held a proper expenditure, as has the repaying property owners for pipe laid with the understanding that the municipality would refund the costs." In Com. ex rel. Philadelphia Police Pension Fund Asso. v. Walton, 182 Pa. 373, 61 Am. St. Rep. 712, 38 Atl. 790, the court said: "A judiciously administered pension fund is doubtless a potent agency in securing and retaining the services of the most faithful and efficient class of men connected with that arm of the municipal service in which every property owner and resident of the city is most vitally interested. Reasons in support of this proposition need not be stated in detail. They are such as readily suggest themselves to every reflecting mind." The constitutionality of mothers' pension acts have generally been sustained by the courts, upon the ground that they prevent dependency and destitution. The policy in question provides insurance for the widows and children of deceased employees, and prevents dependency and destitution, and to this extent is related to the mothers' pension acts. In a sense the Workmen's Compensation Act (Pub. Laws, chap. 123), which was sustained by this court in Scott v. Nashville Bridge Co. 143 Tenn. 86, 223 S. W. 844, is analogous, for it recognizes the right of a municipality to carry insurance upon the lives of its employees. In holding that the city of Nashville could lawfully subscribe to stock in the Nashville & Chattanooga Railroad, this court, in Nichol v. Nashville, 9 Humph. 252, said: "What is a corporation purpose of the town of Nashville? General definitions are always difficult to be given with precision and accuracy, especially where they have to cover as extensive ground as that embraced by the expression, 'corporation purposes.' I shall not, therefore, attempt to specify what are corporation purposes of the city of Nashville. They are, or may be made to be, as numerous and diversified as may be found requisite by experience to promote the peace health, comfort, and prosperity of its corporators, and anything which promotes these things is or may be constituted a legitimate corporate purpose. Perhaps I might divide corporate purposes into two classes -those which are direct, and those which are indirect. A direct corporate purpose might be styled to be one which, in its direct and immediate consequences, operates upon the interests of the corporation. Such would be all police regulations for the government of the town, the promotion of good order, the protection of its citizens from the lawless, the suppression of vice, the opening and preservation of highways, streets, and alleys, the erection of market houses and hospitals, supplying the town with water, etc. An indirect corporate purpose might be styled to be one which does not, in its direct and immediate consequences, operate upon the corporators, but the beneficial effects of which are to be experienced in a remoter degree, and which have to be traced to their source before they can be duly comprehended and appreciated." And later on in the opinion, in discussing the construction to be given the power vested in the city, the court said: "But this strict construction has never confined the execution of the power to its word and letter, but everything necessary and proper for carrying into execution the granted power has always been conceded by the strictest constructionist." The In East Tennessee University v. Knoxville, 6 Baxt. 166, this court said: "The principle that governs in determining whether an appropriation is for a corporation purpose, or not, may be clearly illustrated by reference to what corporations may do in the preservation of health of their inhabitants. preservation of health is universally conceded to be a legitimate corporation purpose. To carry out the power to preserve the health of a city, money may be appropriated to secure a constant supply of wholesome water; hence, waterworks outside of the city, from which good water may be conveyed into the city, may be erected and operated, either in whole by the city, or in connection with others. In like manner, it is now well understood that public parks in the vicinities of cities contribute essentially to the health and comfort of their inhabitants, and hence money may be legitimately appropriated for these purposes. So, likewise, as to the erection of hospitals and pesthouses outside of a city." In Ryan v. Louisville & N. Terminal Co. 102 Tenn. 111, 45 L.R.A. 303, 50 S. W. 744, the court said: "The term 'public use' is a flexible one. It varies and expands with the growing needs of a more complex social order. Many improvements, 27 A.L.R.-80. universally recognized as impressed with a public use, were nonexistent a few years ago." The foregoing excerpts from the decisions of this court (and many others could be cited to the same effect) indicate that this court has followed a liberal and progressive policy in dealing with this question, and has refused to interfere with the discretion of the governing powers of the municipality in such matters, except where there has been an abuse of discretion. The exact question here involved has been passed upon by only one state court of last resort, so far as we are aware. In Nohl v. Board of Education, 27 N. M. 232, 16 A.L.R. 1085, 199 Pac. 373, there was involved the validity of a contract of group insurance upon the lives of teachers in the public schools of Albuquerque. The court sustained the right to insure, and said: "The expenditure of public funds raised by taxation or other methods for public purposes must necessarily be intrusted by the legislature to the public agencies, and these agencies are required to exercise discretion and judgment in determining the purpose for which such money will be spent, within the limits of the authority granted, and courts will not interfere, unless there is a clear departure from the legislative authority. In the management and conduct of public schools of the state the school authorities are called upon to determine the objects and purposes for which the school funds shall be expended, within the limits of the authority granted, which will prove beneficial to and promote the interests of education, and to expend money daily for such purposes. "It is admitted that the securing of group insurance for the teachers enables the board of education to procure a better class of teachers, and prevents frequent changes in the teaching force. This is certainly desirable and conducive to the 'proper conduct of the public schools.' School funds are now being spent in all the school districts of the state, and in many, if not all, of the other states, for purposes and objects unquestionably proper, gauged by our advancing civilization, which a quarter of a century ago would have been considered highly improper. In many of the schools we have mechanical instruction in many of the trades and professions, which not so many years ago would not have been tolerated. The teaching The teaching of music, arts, and science has become a recognized necessity. Many things are provided now for the comfort and convenience of both teachers and pupils, which heretofore would have been prohibited by injunction as an improper expenditure of public funds. In some of the schools of the state gymnasiums, swimming pools, playgrounds, and others forms of recreation, amusement, and diversion are provided, because it is recognized by advanced public sentiment that such instrumentalities are calculated to, and do, promote the cause of education, and tend to better the schools and keep the pupils and teachers satisfied and contented. Many corporations employing large numbers of laborers throughout the country carry group insurance on such employees with the same object in view as that which evidently was in the minds of the members of the board or education of the city of Albuquerque when the insurance in question was purchased. In many parts of the state we have consolidated schools, where conveyances are hired, or means of transportation provided, by which pupils living at long distances from the school are transported to and from the consolidated school. The power of boards of education to do so has never been questioned, because it is recognized that better schools are thus provided, and the cause of education is promoted. "It is clear that the courts should not interfere with the discretion intrusted to boards of education under the statute, unless it plainly appears that there has been a gross abuse of such discretion, and that the funds are being spent for purposes and objects which have no relation to the public schools. This cannot be said in this case." The question was again before the supreme court of New Mexico in the case of Bowers v. Albuquerque, 27 N. M. 291, 200 Pac. 421, involving the carrying of group insurance on employees of the city, and upon the authority of the previous case the court upheld the right. A similar question was held invalid by a judge of an inferior court in New York, but in the court of appeals his action was not passed upon, the court saying: "No question is made that relator has not taken proper steps for the enforcement of its claim, assuming that the city had the legal right to contract. The record is too fragmentary to enable the court to decide the fundamental question as to the right of the city to take out the policy which has actually been issued to it, and the duty of the city to pay the premium there on. "1. It does not appear that the bill of relator has been audited or allowed by the common council, or that the comptroller has been ordered to pay the same, or that such audit, allowance, and order are unnecessary, or that the comptroller has legal authority to pay the relator. lator. Peremptory mandamus will not lie unless it appears without contradiction that it is the clear legal duty of the comptroller to pay the bill. "2. The record does not set forth the facts needful to enable the court to determine the question argued. The insurance policy actually issued is not before us. We are left in ignorance as to its terms. It does not appear whether or not the insurance continues to cover the life of an employee after he voluntarily leaves the service of the city. The opinion of Borst, J., at special term, refers to disability benefits, but so far as the record shows the policy is one of life insurance only. It does not appear that employees disabled before the policy was issued are |