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

• Decision Date: 11 June 1901
• Citation: 163 Mo. 254,63 S.W. 811
• Court: Missouri Supreme Court
• Parties: LEBANON LIGHT & MAGNETIC WATER CO. v. CITY OF LEBANON.

63 S.W. 811

163 Mo. 254

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

Supreme Court of Missouri, Division No. 2.

June 11, 1901.

MUNICIPAL CORPORATIONS — CITIES — CONTRACTS — AUTHORIZATION — ELECTION — ORDINANCE — EXISTENCE — PAROL EVIDENCE.

Since Rev. St. 1889, § 1601, requires the board of aldermen to keep a journal of its proceedings, — the yeas and nays of the members on any question to be entered on request of any two members, — in an action on a contract for furnishing water to a city parol evidence is not admissible to show that an ordinance was passed by the council directing an election to be held to adopt such contract; it not appearing on the journal or records of the city that such ordinance was passed.

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 defendant, plaintiff appeals. Affirmed.

This is an action by plaintiff, as assignee of the Lebanon Light & Water Company, to recover of the defendant, a city of the fourth class, the sum of $720 and interest, for the rental of seven hydrants furnished to the defendant city by plaintiff from the 15th day of March, 1896, to the 1st day of January, 1898, at the rate of $420 per annum. The facts are about as follows: On the 1st day of September, 1890, the board of aldermen of defendant city, by an ordinance duly passed, numbered 86, granted to the Lebanon Light & Water Company and its assigns the right to construct, operate, and maintain in said city a system of waterworks for a period of 20 years, and to supply said city and its inhabitants with water. By section 10 of said ordinance it is provided that the city of Lebanon would rent of the light and water company seven fire hydrants, for $420 yearly rental, to be paid in semiannual installments, on the 1st day of January and July of each year; deferred payments to bear 8 per cent. interest from the time they were due until paid. The Lebanon Light & Water Company accepted the terms of the contract, and complied fully with all its terms and conditions. It proceeded to erect, and did erect, a system of waterworks for the city. It expended large sums of money in mains, hydrants, standpipe, excavation of wells, etc., at an expenditure of some $20,000. It constructed the seven fire hydrants to furnish water to the city for fire purposes, which the city duly accepted and took possession of. The Lebanon Light & Water Company and the plaintiff, successor and assignee, continued to furnish the city of Lebanon with water in accordance with its agreement. While an election was held in pursuance of said ordinance in the defendant city on the 16th day of September, 1891, at which said ordinance was submitted for ratification to the qualified voters of said city, and was in fact adopted at said election by a vote of 264 for to 3 against, it is claimed by defendant that no ordinance was in fact passed by the city council calling said election. An ordinance was in fact presented to the city council calling an election for the 16th of September, 1890, for a vote upon said Ordinance No. 86, and was duly adopted and signed by the mayor of the city, but it was never spread on the journal of the city.

The court (a jury being waived), over the objection and exception of plaintiff, declared the law to be as follows: "(1) The court declares the law to be that the city authorities of the city of Lebanon had no right to...