City of Lexington v. Lafayette County Bank

• Decision Date: 19 November 1901
• Citation: 65 S.W. 943,165 Mo. 671
• Court: Missouri Supreme Court
• Parties: CITY OF LEXINGTON ex rel. PRICE, Collector, v. LAFAYETTE COUNTY BANK.<SMALL><SUP>1</SUP></SMALL>

65 S.W. 943

165 Mo. 671

CITY OF LEXINGTON ex rel. PRICE, Collector, v. LAFAYETTE COUNTY BANK.¹

Supreme Court of Missouri, Division No. 1.

November 19, 1901.

MUNICIPAL CORPORATIONS — CONTRACTS FOR WATER SUPPLY — VALIDITY — RATE OF TAXATION — CONSTITUTIONAL LIMITATIONS — SUBMISSION TO VOTERS — ASSESSMENT LIST — APPEAL.

1. Lexington City Charter, art. 5, § 6, empowering the city council to levy a special tax for the erection of waterworks, etc., does not authorize the city council to contract with a water company to rent hydrants from the company.

2. An objection that a city had no power to make a particular contract, because the amendatory act conferring such power was unconstitutional, was untenable, where, conceding such unconstitutionality, the contract was fully authorized by the original act.

3. Though a party is bound under certain conditions by his solemn admissions of a fact during a trial, his erroneous concession as to the law will not bind him, where the court has not been misled.

4. Lexington City Charter, art. 4, § 9, empowered the city council to provide the city with water for the convenience of its inhabitants. Gen. St. 1865, p. 370, declared, in section 15, that any city in which a water company was organized under that chapter could contract with such corporation for supplying the streets and public places with water. Act May 16, 1879, amended the last section, imposing certain restrictions on the powers granted. Held to empower the city to contract with a water company to rent hydrants from the company.

5. A contract by a city to rent certain hydrants, and to levy therefor an annual tax of 40 cents per $100, in addition to the 50 cents per $100 levied for general city revenue, is not a creation of an indebtedness on the part of the city, within Const. art. 10, §§ 11, 12, fixing the lawful limit of municipal indebtedness.

6. Act May 16, 1879 (Laws 1879, p. 47), authorizing the municipal authorities of any city to contract with water companies for a supply of water, and providing that such contracts shall have no binding force until "submitted to a vote of the qualified electors," and "ratified by a two-thirds majority," does not require that the contract be submitted after it has been accepted by the water company, but it may be confirmed by the people before such acceptance.

7. A party to an action admitting the existence of a certain fact in the lower court will not be heard to question it on appeal.

8. A contract by a municipal corporation properly ratified at a city election will not be invalidated because certain amendments thereafter made by the city council were not submitted to the people, but where such submission is necessary the amendments will merely be disregarded.

9. An assessment list made out and signed by the president of the corporation assessed is not invalidated because he failed to fill out the blanks calling for each particular class of property owned by it, but merely entered the total valuation at the foot of the column; the imperfection in the list being due to its own omission.

Appeal from circuit court, Lafayette county.

Action by the city of Lexington, on the relation of James N. Price, collector, against the Lafayette County Bank. Judgment for plaintiff, and defendant appeals. Affirmed.

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 10,000 and more than 1,000 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 20 years, and agreeing to rent 50 hydrants from the company, to pay annually therefor $4,000, and to levy a tax not exceeding 40 cents on the $100 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 such a system. It is deemed unnecessary, however, to copy it into this statement, as its purport is sufficiently indicated above for the purpose of this suit. By the city charter the city council is given power to levy taxes on all property in that city not exempt, "not exceeding one half of one per centum upon the assessed value thereof; to defray the contingent expenses of the city and for other purposes not herein otherwise provided for, which tax shall constitute the general fund." Section 2, art. 5. The city council is also empowered to levy a special tax "for the erection of markets, city halls, hospitals, workhouses and waterworks and gas works within or without the city limits, for the purchase of market ground, public squares, parks, gas or waterworks, or for any public improvement: provided the estimated cost of such improvement or purchase be apportioned by the city council and collected by a series of annual assessments, but no tax or taxes shall be levied under this section in any one year which shall exceed five mills on the dollar, or the assessed value of the entire taxable property of the city, for any and all purposes in this section specified: provided further that the proposition to levy such special tax shall have been first submitted to a vote of the qualified voters of said city, and approved by a majority thereof." Section 6, Id. And in the enumeration of the powers of the council in another section of the chapter is this: "Fifth, to provide the city with water; to make, regulate and establish public wells, pumps, cisterns, hydrants and reservoirs in or under the streets within the city or beyond the limits thereof, for the extinguishment of fires and the convenience of the inhabitants generally." Section 9, art. 4. Those were the only charter provisions offered in evidence at the trial. They appear in the amended charter of the city of Lexington, in the Session Acts of 1870 (page 366). The waterworks were constructed and the hydrants furnished as agreed. The city has each year since then levied a tax of 40 cents on the $100 valuation of property to pay the rental of the hydrants, which levy was in addition to the one-half of 1 per cent. levied annually for general city revenue. The defendant paid the general revenue tax assessed against it for the years 1892, 1893, 1894, and 1895, and tendered that for 1896, which was refused, but declined to pay each year the 40 cents assessed for the hydrant rents; and, after due demand therefor, this suit was brought to recover the same. The trial court rendered judgment in favor of the plaintiff, and the defendant has brought the cause here for review.

Wm. H. Chiles, for appellant. Jno. Welborn and Chas. Lyons, for respondent.

VALLIANT, J. (after stating the facts).

1. The charter provision in section 6, art. 5, above quoted, does not contemplate the obtaining of a supply of water by renting hydrants, but has in view the construction or purchase of waterworks by the city. It is therefore no authority for the ordinance and contract in question. The power conferred, however, in the fifth subdivision of section 9, art. 4, is general in its terms, and seems sufficient to confer, if there is no constitutional restriction, the power claimed. The power conferred is "to provide the city with water; * * * for the extinguishment of fires and the convenience of the inhabitants generally." How the water is to be provided is left to the judgment of the council. As it cannot be provided without expense, the power to incur the expense is implied, and, as means to meet the expense can only come from...