City of Lexington ex rel. Price v. Lafayette County Bank
| Decision Date | 17 December 1901 |
| Parties | THE CITY OF LEXINGTON ex rel. PRICE, Collector, v. LAFAYETTE COUNTY BANK, Appellant |
| Court | Missouri Supreme Court |
Appeal from Lafayette Circuit Court. -- Hon. Richard Field, Judge.
Affirmed.
Wm. H Chiles for appellant.
(1) Section 6, of the city charter, which authorizes the city to levy a special tax for the erection of. . . . waterworks and the purchase of. . . . waterworks, and the entire section which is lengthy, shows that the powers are strictly limited to such erection or purchase of waterworks and can not by any implication authorize a tax for hydrant rental from a waterworks owned by some other person or company. Nor can such power be delegated. Waterworks Co. v. City of Kansas, 20 Mo.App. 237; Railroad v. Morley, 45 Mo.App. 304; Stewart v. City of Clinton, 79 Mo. 603. Under this section of the charter, a public debt may be created to build or purchase waterworks only, such debt to be paid by a series of annual assessments, for which a proposition to levy such special tax must be submitted to a vote and approved by a majority of the voters of the city. (2) The general power "to provide the city with water to make, regulate and establish public wells, pumps, hydrants and reservoirs in and under the streets," is only ancillary to the powers of taxation referred to above, and certainly contains no authority to tax beyond the one-half per cent per annum, attempted to be exercised in this case. (3) The respondent, however, contends that the power of the city under its old charter (1870) was added to and reinforced by the provisions of the present Constitution (1875). This court has decided that such is not the law, but that legislation is necessary to give the added power claimed. State ex rel. v. Van Every, 75 Mo. 530. (4) The waterworks Act of 1879 (Laws 1879, p. 47), the provisions of which it seems the city attempted to comply with in this case, is clearly unconstitutional for these reasons: Its title expresses nothing, and its subjects, which are several as stated hereafter, are none of them "clearly expressed in its title." Constitution, art. 4, sec. 28. It will be noticed in comparing decisions made under the old Constitution, that its similar provisions (Const. 1865, art. 4, sec. 32) does not contain the word "clearly," making the present constitutional provision the stronger. State v. Mathews, 44 Mo. 526; State v. Miller, 45 Mo. 495; City of Kansas v. Payne, 71 Mo. 159; State ex rel. v. County Court, 102 Mo. 531. (5) The ordinances passed by the respondent city do not comply with its provisions. (a) The act requires that the "contracts entered into" shall be submitted to and ratified by vote. In this case, the ordinance, which is the contract, was not signed by the waterworks company when it was submitted, and not until after the election, and was therefore no contract when voted upon. (b) The vote should have been for the ratification or non-ratification of a proposed contract, but it was simply for or against waterworks, which was not only a noncompliance with the acts, as it did not submit the proper question, but it was misleading. Every voter in the city might have been in favor of waterworks, while a great majority might have been opposed to the provisions of the contract to be proposed. (c) The original ordinance voted upon, not being satisfactory to either party and "a controversy having arisen as to its existence as a contract," it was changed and amended by the city and waterworks company in an amendatory ordinance without such change being also submitted to and ratified by a vote as provided in the act in question. For these reasons the original and amendatory ordinances should have been excluded by the court on the objections of the appellant. (6) During the argument of the case, however, Mr. Welborn, counsel of record for respondent, stated to the court that the respondent did not rely upon the Act of 1879, but solely upon the charter of the city as offered, and the power derived from the Constitution, for the power to levy the water taxes in issue herein, which statement is preserved in the bill of exceptions. This eliminates that act and question from this case. The admissions of attorneys of record bind their clients in all matters relating to the progress and trial of the cause. 1 Greenleaf on Evidence (5 Ed.), sec. 186, p. 241. Solemn admissions, in course of judicial proceedings, are regarded as conclusive upon a party, at least for the purposes of the case in which they are made. State v. Brooks, 99 Mo. 142; Moling v. Barnard, 65 Mo.App. 603.
Jno. Welborn and Chas. Lyons for respondent.
(1) The city of Lexington, under the charter and laws of Missouri, had ample power and authority to levy the taxes sued for. Water and Electric Light Co. v. Lamar, 128 Mo. 188; Aurora Water Co. v. City of Aurora, 129 Mo. 540; Saleno v. The City of Neosho, 127 Mo. 627; Water and Electric Light Co. v. City of Lamar, 140 Mo. 145; Water Co. v. City of Neosho, 136 Mo. 498; Asphalt Paving Co. v. Ullman, 137 Mo. 543; R. S. 1879, sec. 952; R. S. 1899, sec. 1342; Laws 1879, p. 47. (2) Act of 1879 is constitutional and courts hesitate to declare a law unconstitutional on the ground that the title does not clearly express the subject of the act. State v. Burgdoerfer, 107 Mo. 1; State ex rel. v. County Court, 128 Mo. 440. And it is sufficient if the title does not mislead as to the chief topic of the act and that the minor features of it have a reasonable and natural connection with the subject named in the title. State ex rel. v. Miller, 100 Mo. 439; Lynch v. Murphy, 119 Mo. 163. And in the case of State ex rel. v. Heege, 135 Mo. 112, cited by appellant, the title was both misleading and deceptive and does not clearly express the subject of the act. The generality of a title is no objection so long as it is not made to cover legislation incongruous itself, and no provisions in a statute having a natural connection with the subject expressed, and not foreign to it, is deemed within the constitutional inhibition. St. Louis v. Tiefel, 42 Mo. 578; State v. Mathews, 44 Mo. 523; State v. Miller, 45 Mo. 495; Hannibal v. County of Marion, 69 Mo. 571; State ex rel. v. Mead, 71 Mo. 268; Commonwealth v. Green, 58 Pa. St. 226; Walker v. Dunham, 17 Ind. 483; State ex rel. v. Union, 33 N. J. L. 350. But should the court hold the Act of 1879 unconstitutional, the city had the authority, under its charter and ordinances and the power derived from the Constitution, to levy and collect the taxes sued for. (3) The amendatory ordinances passed after the ordinance had been adopted by a two-thirds vote, is constitutional and it was not necessary that said amendatory ordinances should be again submitted and ratified by vote, as the main question had once been submitted and ratified by a two-thirds vote of the city. Water Co. v. City of Aurora, 129 Mo. 583; Water Co. v. City of Neosho, 136 Mo. 509; Water and Light Co. v. City of Lamar, 140 Mo. 157; Graff v. Foster, 67 Mo. 520; Benjamin on Sales, sec. 703. (4) No assessment of property, or charges for taxes thereon, shall be considered illegal on account of any informality in making the assessment, or in the tax lists, etc. R. S. 1889, sec. 7563; R. S. 1899, sec. 9179; State ex rel. v. Phillips, 137 Mo. 259; Cooley on Taxation (2 Ed.), pp. 283, 284, 285; Railroad v. Gracey, 126 Mo. 472; State ex rel. v. Bank of Neosho, 120 Mo. 168; State ex rel. v. Tobacco Co., 140 Mo. 218. Every person must give a correct list to the assessor. R. S. 1889, sec. 7531; R. S. 1899, sec. 9144; State ex rel. v. Hoyt, 123 Mo. 348; State ex rel. v. Springer, 134 Mo. 228. A taxpayer is estopped to deny the correctness of a list furnished by him to the assessor and to contest the assessment made thereon. Hubbard v. Wendson, 15 Mich. 146; Jeffries v. Clark, 23 Kan. 319; Building & Savings Assn. v. Lightner, 47 Mo. 393; Express Co. v. St. Joseph, 66 Mo. 675; Dennison v. Co. Com. of Williamson County, 153 Ill. 516; People v. Atkinson, 103 Ill. 45; Mathews v. City of Kansas, 80 Mo. 231; Ellerbe v. Bank, 109 Mo. 445; San Francisco v. Flood, 64 Cal. 504; Dear v. Varnum, 80 Cal. 86; San Francisco v. Pennie, Admr., 93 Cal. 465.
This suit is to collect taxes assessed by the city of Lexington for the purpose of raising a fund with which to discharge its obligation to the Lexington Water Company for the rent of hydrants furnished by the company to the city under a contract. The corporate power of the city to make the contract and lay the tax is denied by the defendant, and that denial raises the chief question in the case.
There is no dispute as to the facts. Lexington is a city of less than ten thousand and more than one thousand inhabitants existing under a special charter granted in 1845, and amended in 1870, it having never elected to come under the general charter of cities of that size. In 1884 the city passed an ordinance looking to the establishment of a system of waterworks, granting to the Lexington Water Company the right to construct such a system and the usual franchise as to use of streets, etc., for a period of twenty years, and agreeing to rent fifty hydrants from the company, to pay annually therefor $ 4,000, and to levy a tax not exceeding forty cents on the one hundred dollars valuation of all taxable property in the city, to meet the payments. Before entering into the contract, the ordinance was submitted to the voters of the city and approved by two-thirds of them at an election held for that purpose. The ordinance is set out in full in the record, and contains many specifications looking to the supply of water, not only to the city for public use, but also to the inhabitants thereof, at rates designated, and to the general regulation of...
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