Lebanon Light & Magnetic Water Co. v. City of Lebanon

• Decision Date: 11 June 1901
• Citation: 63 S.W. 809,163 Mo. 246
• Court: Missouri Supreme Court
• Parties: LEBANON LIGHT & MAGNETIC WATER CO. v. CITY OF LEBANON.

63 S.W. 809

163 Mo. 246

LEBANON LIGHT & MAGNETIC WATER CO. v. CITY OF LEBANON.

Supreme Court of Missouri, Division No. 2.

June 11, 1901.

MUNICIPAL CORPORATIONS — CITIES — CONTRACTS — AUTHORIZATION — ORDINANCE — ELECTION — IRREGULARITY — VALIDITY — NOTICE — PLEADINGS — QUESTIONS RAISED — NECESSARY EXPENSES — ERROR — OBJECTIONS — PARTY BENEFITED.

1. Where there was no fraud, the holding in one ward, instead of in all the wards, of a city, of an election for the adoption of an ordinance authorizing a contract for electric lighting of a city, was an irregularity, and did not invalidate the election.

2. Where, in the election for the adoption of an ordinance authorizing a contract for electric lights, the fact that many of the ballots voted did not contain the words "tax levy," while they were counted for electric light contract and tax levy, was a mere irregularity, which did not invalidate the election, there being no fraud.

3. Where, in an action on a contract with a city, the pleadings did not raise the question that no notice was given that an election for the adoption of an ordinance authorizing the contract would be held, defendant cannot object that there was no evidence of such notice.

4. Under Rev. St. 1889, § 4977, providing that the necessary expenses for maintaining a city government which have a preference over contract obligations are the reasonable salary allowed by law to the mayor, council, assessor, marshal, constable, attorney, and a reasonable police force of the city, it was error, in an action on a contract, to allow other items of expense, whereby the city funds applicable to the contract, and for which plaintiff obtained judgment, were reduced below the amount due on such contract.

5. The error of the court being in favor of defendant, it cannot complain thereof.

Appeal from circuit court, Laclede county; L. B. Woodside, Judge.

Action by the Lebanon Light & Magnetic Water Company against the city of Lebanon. From a judgment in favor of plaintiff for less than the amount demanded, both parties appeal. Reversed on plaintiff's appeal.

This is an action by plaintiff, as assignee of the Lebanon Light & Water Company, against the city of Lebanon, for the rental of 23 arc lights, of 2,000 candle power each, furnished said city during the year 1897. On January 5, 1891, said city, by Ordinance No. 90, granted the Lebanon Light & Water Company the right, for a period of 20 years, to operate a plant for making and furnishing the city of Lebanon with electric light, and which also provided that said company and its assigns should during this period supply the citizens of Lebanon with electric light; and said city expressly agreed by said ordinance to pay said company and its assigns $3,000 per annum for 23 arc lights, of 2,000 candle power each; the same to be payable quarterly, and, if not paid when due, to bear 8 per cent. from the time payments become due until paid. This ordinance was duly submitted to a vote at an election called for that purpose, and the trial court found that at said election said franchise was duly adopted, and became a binding contract on the city. The trial court decided that the plaintiff, out of the revenues and income provided by the defendant city for the year 1897, was only entitled to the sum of $2,214.40, and not the full amount contracted for, and that the balance of said revenues provided for said year was properly appropriated to the payment of the expenses of the city government for that year. The correctness of this ruling is the only question challenged by the plaintiff's appeal. The trial court, by declarations of law, found that the "actual income of the city of Lebanon for the year 1897 was $4,197.27."

Plaintiff asked the following declarations of law: "The court finds and declares the law in this case: That the contract entered into between the city of Lebanon and the Lebanon Light & Water Company is a binding contract on the said city, and, further, that the plaintiff should have judgment for three thousand dollars, and eight per cent on deferred payments, for the 23 arc lights furnished defendant during the year 1897: provided, that the same could be paid out of the income and revenue provided by said city for the year 1897, after deducting therefrom the amount that might be necessary to pay the reasonable salary allowed by law and the ordinances of said city, if any, to the mayor, council, assessor, marshal, attorney, and a reasonable police force for the defendant city; and if the court shall find that the income provided by the said city of Lebanon for the year 1897, after deducting the said expenses of the city government,...