Palmer v. City of Liberal

Decision Date20 December 1933
Docket NumberNo. 32230.,32230.
Citation64 S.W.2d 265
CourtMissouri Supreme Court
PartiesTAYLOR R. PALMER, J.R. TODD, WERDEN COWLES, M.E. METCALF, LEE MELLOR, MRS. LEE MELLOR, MRS. J.M. POST, MRS. GEO. JACKSON, TILLIE EDWARD, A. DECKER, MRS. G. McCOLM, W.F. DeLISSA, MRS. MARKS, ELIZABETH S. BARNES, MRS. M. BELL, JOHN METCALF, GEORGE JACKSON, W.A. DeLISSA, C.L. DeLISSA, M.H. BRYSON, JOHN T. THROUGHTON, MRS. J.H. BRYSON, J.F. SECHRIST, M.L. McCOLM, ARTHUR CUFFY, F.A. MARKS, G.C. MASSIE, FRANK CALE, G.W. BALL, P.J. GRABB, ALBERT PHILLIPS, N. BLAKE, NELS NELSON, GARFIELD LAPP, GRACE LAPP, MRS. J.T. THROUGHTON, J.T. CHESTER, MRS. J.T. CHESTER and THE OZARK UTILITIES COMPANY, a Corporation, Appellants, v. THE CITY OF LIBERAL, W.V. BRADEN, W.S. WEAVER, JIM TRAVIS, HERBERT HARVEY and MAX DAVIDSON, Members of the Board of Aldermen; E.A. WILSON, City Clerk and EDWIN M. LIBSCOMB, Treasurer of said City of Liberal; THE CARDIN MACHINERY AND ELECTRIC CONSTRUCTION COMPANY, a Co-Partnership Composed of GEORGIA N. HORN, JAMES F. COFFEY, JAMES F. HORN, J.W. HORN, and ALEXANDER, McARTHUR & COMPANY, a Corporation.

Appeal from Jasper Circuit Court. Hon. Grant Emerson, Judge.

AFFIRMED.

W.E. Suddath, T.W. Martin, H.W. Timmons and Sparrow & Patterson for appellants.

(1) The $22,000 bond issue is void under both Sections 12 and 12a, Article X of the Missouri Constitution; void under Section 12 because in excess of five per cent of the assessed valuation; void under Section 12a because not created or voted for the purpose of erecting an electric light plant to be owned exclusively by the city. Sec. 12, Art. X, Mo. Const.; Sec. 12a, Art. X, Mo. Const.; Cooper v. Town of Middletown, 105 N.E. 393; Fisher Electric Co. v. Bath Iron Works, 74 N.W. 493; Yamhill Electric Co. v. McMinnville, 274 Pac. 118, P.U.R. 1929C, 340; Brown v. Gerald, 100 Me. 351, 61 Atl. 785, 70 L.R.A. 472; Ry. Co. v. Scott, 29 Ind. App. 519, 64 N.E. 896; Roebling's Sons Co. v. Humbolt Elec. L. & P. Co., 112 Cal. 288, 44 Pac. 568; Ewart v. Western Springs, 180 Ill. 318, 54 N.E. 478; Van Eaton v. Town of Sidney, 231 N.W. 475; 3 Words & Phrases (2 Ed.) 1049; Old Colony Trust Co. v. Sugar Co., 150 Fed. 680; Maxwell v. Mfg. Co., 77 Fed. 941; State ex rel. Columbia v. Allen, 183 Mo. 283; State ex rel. Chillicothe v. Wilder, 200 Mo. 97; Hedges v. Dixon County, 150 U.S. 182, 14 Sup. Ct. Rep. 71; Prickett v. Marceline, 65 Fed. 469; Waite v. Vera Cruz, 89 Fed. 619; State ex rel. v. Gordon, 251 Mo. 311. (2) Execution and performance of the ten year electric supply contract between the Cardin Company and the city is unlawful because not ratified by voters, as expressly required by Section 7028, Revised Statutes 1929. Sec. 7028, R.S. 1929; Heidelberg v. St. Francois County, 100 Mo. 74. (3) The voters ratified the making of a debt for building a distribution system and power line. The city council and mayor by their subsequent contracts propose to build and furnish an entirely different system, a distribution system only, with an entirely different power supply. Such contracts therefore are violative of Section 20 of Article X of the Missouri Constitution, which expressly requires the use of moneys secured by debt-making to be used for the purpose for which obtained "and not otherwise." Sec. 20, Art. X, Mo. Const.; 44 C.J. 1209; Beers v. Watertown, 43 S.D. 14, 177 N.W. 502; People v. Bellport, 119 Misc. Rep. 357, 196 N.Y. Supp. 459; Meyers v. Kansas City, 323 Mo. 200, 18 S.W. (2d) 900. (4) Appellants may not be charged with laches. Abraham v. Ordway, 158 U.S. 416; Galligher v. Cadwell, 145 U.S. 368; Jackson v. Jackson, 175 Fed. 710; Gross v. Mfg. Co., 48 Fed. 35; Waits v. Moore, 115 S.W. 931; Pethtel v. McCullough, 39 S.E. 199; Marston v. California, 54 Cal. 189; Coryell v. Klehm, 41 N.E. 864; Citizens Natl. Bank v. Judy, 43 N.E. 259; Boyd v. McLean, 1 Johns. Cg. 582; Railway Co. v. Bremond, 53 Tex. 96. (5) Cardin Company's operation of an electric plant without a certificate of convenience and necessity from the State is unlawful. Secs. 5122, 5193, R.S. 1929; State ex rel. Danciger & Co. v. Pub. Serv. Comm., 275 Mo. 483, 205 S.W. 36. (6) The city acted beyond its powers when it attempted to lease for a term of years or otherwise the portion of the public park or city park for the use of the Cardin Company in maintaining its privately owned electric plant or to any other person for private profits. Gaskins v. Williams, 235 Mo. 563; Cummings v. St. Louis, 90 Mo. 259; Board of Regents v. Painter, 102 Mo. 464; Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 121; Price v. Thompson, 48 Mo. 361. (7) Appellants are entitled to maintain this action. Hight v. Harrisonville, 41 S.W. (2d) 155.

C.E. Davidson, A.W. Thurman, E.L. Moore and Bowersock, Fizzell & Rhodes for respondents.

(1) Under the evidence the bonds had been voted, registered and sold or negotiated. These are past transactions. The purpose of an injunction which is always a matter of grace and discretion cannnot extend to past transactions. An injunction is to prevent acts that have not been committed. Wrongful acts cannot be corrected by an injunction. 32 Cyc., sec. 24, p. 45; Carlin v. Wolff, 154 Mo. 539; Lademan v. Construction Co., 297 S.W. 184; Owens v. Ford, 49 Mo. 436; Davis v. Hartwig, 195 Mo. 500; Brier v. State Exchange Bk., 225 Mo. 673, 125 S.W. 469; State ex rel. Weir v. Springfield Gas & Elec. Co., 204 S.W. 942; 2 Spelling on Injunction (2 Ed.), sec. 1018; High on Injunction (4 Ed.), sec. 23. (a) The petition alleges that ordinances Nos. 247 and 253 and the bonds issued thereunder are null and void and the contract is null and void. If these allegations be true it is clear that plaintiff is not entitled to injunctive relief and that injunction is not the proper remedy. Where a perfect remedy exists at law resort cannot be had to injunction. Cruckshank v. Baldwin, 176 U.S. 79, 42 L. Ed. 386; Boise Hot & Cold Water Co. v. City of Boise, 213 U.S. 273; Hopkins v. Lovall, 47 Mo. 102; McPike v. Pew, 48 Mo. 525; Hudson v. Walker, 70 Mo. App. 632; State v. Wood, 155 Mo. 425. (b) A court of equity is never active in relief against conscience or public convenience; especially when plaintiffs are guilty of laches; and injunction will not be granted when it will be productive of greater injury than will result from a refusal of it. Steines v. Franklin County, 48 Mo. 176; Johnson v. Railroad, supra; Lyons v. School Dist., supra; White v. Boyne, supra. (2) The bonds are not in violation of the Constitution. Under the contract between the Cardin Machinery & Electric Construction Company the city was not obligated in any sum whatever and incurred no indebtedness whatever except on contract for distribution system. The contract relating to furnishing power provided "that this agreement to pay said sum or sums does not now create, and shall never be allowed or held to create any liability against any tax funds of said city; and no taxes, general or special, shall ever be levied now or hereafter upon the property in the corporate limits of the city of Liberal." Such contract did not create or constitute a general indebtedness and the Constitution has nothing to do with it. State ex rel. v. Neosho, 203 Mo. 82; Bell v. Fayette, 325 Mo. 75; Franklin Trust Co. v. Loveland, Colo., 3 Fed. (2d) 114; McCutchen v. City of Siloam, 49 S.W. (2d) 1037. (a) However, the bond issue would be valid under Section 12a of Article X of the Constitution, being less than ten per cent of $408,393, the assessment next before the last. State v. Allen, 183 Mo. 291; State v. Hackmann, 274 Mo. 560; Secs. 7641-7643, R.S. 1929; 48 C.J. 1220; Sec. 5122, Subd. 12, R.S. 1929. (b) Section 2920, Revised Statutes of Missouri, provides that the bonds shall be presented to the State Auditor who shall register the same in a book provided for that purpose and shall certify by endorsement of such bond that all the conditions of the law have been complied with in its issue. Such bonds, after the receiving of the certificate of the auditor, shall thereafter be held in every action, suit or proceeding in which the validity is, or may be, brought in the question, prima facie valid and binding in each action brought to enforce the collection of such bonds. The certificate of such auditor or duly certified copy thereof shall be admitted and received in evidence of the validity of such bonds and the coupons attached; provided the only defense which can be offered against the validity of such bond shall be forgery or fraud; and provides further, that the remedy of injunction shall also lie at the instance of a taxpayer of the respective city, etc., to prevent the registration of any bond illegally issued under the provisions of this article. Bonds are required to be registered. The bonds are good though in excess of the constitutional limit. Secs. 2914, 2920, 2915, R.S. 1929; State ex rel. v. Gordon, 268 Mo. 321; Brown v. Phillips, 300 Mo. 603; Thompson v. Spec. Rd. Dist., 323 Mo. 961; Davies County v. Dickinson, 116 U.S. 665, 117 L. Ed. 1026; 44 C.J. 1190, sec. 4162; Ins. Co. v. Burrton, 75 Fed. 962; Iowa D.D. No. 1 v. Wilkins Co., 125 La. 133, 51 So. 91; Bank v. Terrell, 78 Tex. 450, 14 S.W. 1003; Columbus v. Woonsocket Sav. Inst., 114 Fed. 162; McPherson v. Foster, 43 Iowa, 48. (c) The contract for power by the Cardin Company does not create general indebtedness or debt. The Cardin Company can get its pay only from the profits of the plant. State v. Neosho, 203 Mo. 82; Bell v. Fayette, 325 Mo. 75; Franklin Trust Co. v. Loveland, supra; McCutchen v. City of Siloam, supra. (d) But even if illegal, nobody can be hurt, as there would be ample legal remedies in resisting the tax. Injunction will not lie. Steines v. Franklin Co., 48 Mo. 167; McPike v. Pew, supra; Ettenson v. Railroad, 248 Mo. 391; City v. Tel. Ex. Co., 294 Mo. 623; Boise Artesian Hot & Cold Water Co. v. City of Boise, 213 U.S. 273, 53 L. Ed. 796. (e) The bonds were duly voted and registered as...

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4 cases
  • Palmer v. City of Liberal
    • United States
    • Missouri Supreme Court
    • 20 Diciembre 1933
  • Sykes v. Belk
    • United States
    • North Carolina Supreme Court
    • 12 Diciembre 1969
    ... ... Short, Jim Whittington, S. R. Jordan and ... JohnThrower, Members of ... Charlotte City Council ... Supreme Court of North Carolina ... March 10, 1971 ...         Gene H ... Board of County Commissioners, supra; Palmer v. City of Liberal, 334 Mo. 266, 64 S.W.2d 265; Bowling v. City of Bluefield, 104 W.Va. 589, 140 ... ...
  • Little Portion Franciscan Sisters v. Boatright
    • United States
    • Missouri Court of Appeals
    • 27 Julio 2000
    ...990 S.W.2d at 67. Respondents cite the cases of Kansas City v. City of Raytown, 421 S.W.2d 504 (Mo. banc 1967), Palmer v. City of Liberal, 64 S.W.2d 265 (Mo. 1933), and Thompson, 15 S.W.2d 346. These cases do not salvage the case from the principles discussed above. They stand for the propo......
  • Board of Public Works of Rolla v. Sho-Me Power Corp.
    • United States
    • Missouri Court of Appeals
    • 20 Enero 1951
    ... ... Jan. 20, 1951 ...         Gregory C. Stockard, Jefferson City, Louis H. Breuer, Rolla, for appellant ...         [241 Mo.App. 456] E. W. Allison, Dewey ...         Respondent also cites Palmer et al. v. City of Liberal, 334 Mo. 266, 64 S.W.2d 265, by Tipton, J., of Division Two, of the ... ...

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