Missouri Power & Light Co. v. City of Bucklin

• Decision Date: 01 July 1942
• Docket Number: 37964
• Citation: 163 S.W.2d 561,349 Mo. 789
• Parties: Missouri Power & Light Company, Appellant, v. City of Bucklin et al
• Court: Missouri Supreme Court

163 S.W.2d 561

349 Mo. 789

Missouri Power & Light Company, Appellant, v. City of Bucklin et al

No. 37964

Supreme Court of Missouri

July 1, 1942

Appeal from Linn Circuit Court; Hon. G. Derk Green, Judge.

Affirmed.

Lon R. Owen and Anderson, Gilbert, Wolfort, Allen & Bierman for appellant.

(1) The evidence shows that the indebtedness of the city with the attempted bond issue would exceed the limit authorized by Sections 12 and 12a of Article X of the Constitution of Missouri. The evidence shows there were outstanding warrants in the sum of $ 745.86, which would make a total indebtedness with these bonds of $ 62,745.86, or $ 392.26 in excess of the constitutional limit. Hight v. City, 328 Mo. 549, 41 S.W.2d 155; Hagler v. Salem, 333 Mo. 330, 62 S.W.2d 751. The affidavit of the City Treasurer filed with the State Auditor in 1938 relating to the registration of a prior bond issue shows that on January 24, 1938, there were outstanding warrants, for which current funds were not available, in the sum of $ 745.86. This condition, once shown, is presumed to continue. Eberle v. Koplar, 85 S.W.2d 919; McDaniels v. Cutburth, 270 S.W. 353. If this were not true in December, 1939, when the election was held defendants had in their possession all the evidence which would have shown to the contrary, and having failed to produce this evidence, the presumption is that this indebtedness of the city was still outstanding. Bailey v Metropolitan Life Ins. Co., 115 S.W. 151. The defendants claim that these warrants had been paid; payment was an affirmative defense and the proof was on the defendants. Griffin v. Priest, 137 S.W.2d 685. (2) The city of Bucklin is estopped to claim that the Missouri Power & Light Company does not have a right to operate in the City of Bucklin for ten years from March 23, 1938, and is estopped to build a competing plant during said ten years. (a) The city passed an ordinance for the contract for supplying of power for ten years from March 23, 1938, for its waterworks entered into the contract, and acquiesced in the expenditure of over $ 800 for the extension of the distribution system to render this service, and is therefore estopped to claim that the appellant cannot operate in said city for said length of time, to-wit, until March 23, 1948. State ex inf. v. Mo. Utilities Co., 331 Mo. 337, 53 S.W.2d 394; State ex inf. v. Springfield City Waterworks, 345 Mo. 6, 131 S.W.2d 525. (b) The city may be barred from erecting a municipal plant for a reasonable length of time. Kansas City P. & L. Co. v. Carrollton, 142 S.W.2d 849, 346 Mo. 802. (3) The proceedings for the proposed issue of bonds are not valid because the result of the election was not declared by ordinance or resolution.

Waldo Edwards and D. L. Dempsey for respondents.

(1) Plaintiff's Exhibit No. 6 shows clearly on its face that it is made expressly for and relates only to the registration by the city of a prior bond issue of twenty-two thousand dollars ($ 22,000) for waterworks which was authorized at an election on January 24, 1938. This date is one year and eight (8) months prior to the date of the election here in question. There is no presumption that a state of facts of the character of this will continue to exist in the future. 22 C. J., p. 92, sec. 31; 22 C. J., pp. 86-92, inc., secs. 28, 29. (2) The question for determination in this case on the issues made by the pleadings is the amount of indebtedness of the City of Bucklin on December 12, 1939. The record contains no evidence that it was other than the amount recited in Ordinance No. 123. The plaintiff, having alleged the existence of an indebtedness in excess of the amount permitted by the Constitution, has the burden of proving that allegation. 22 C. J., p. 148, sec. 83. (3) The defendants did not introduce any evidence but submitted the case on plaintiff's evidence and for this reason and for the further reason that the burden of proof is on the plaintiff to support the allegation of its petition that giving effect to the $ 17,000 bond issue here in question the total indebtedness of the city on December 12, 1939, was in excess of fifteen per cent (15%) of the assessed valuation; and the evidence to support that allegation, if any there is, would be a matter of public record and equally as accessible to plaintiff as to these defendants, there is no presumption that the amount of outstanding warrants for which current funds were not available on January 24, 1938, in the amount of $ 745.86, as shown by Exhibit 6, continued to remain outstanding and unpaid. 22 C. J., p. 112, sec. 53. (4) It cannot be claimed that plaintiff's Exhibit 1, Ordinance No. 117, is an agreement on the part of the city not to erect its own distributing plant. In the absence of such an express agreement the city is entirely free to act in regard to the construction of an electric distribution system. K. C. Power & Light Co. v. Carrollton, 142 S.W.2d 849. (5) Neither can it be successfully maintained that plaintiff's Exhibit 1, Ordinance No. 117, is an exclusive franchise. Municipalities in Missouri are without authority to grant an exclusive franchise. K. C. Power & Light Co. v. Carrollton, 142 S.W.2d 849. (6) Plaintiff's evidence establishes, beyond controversy, that the line constructed by the plaintiff was for the sole purpose of serving the water works only. (7) Plaintiff introduced in evidence Page 59 of the Minute Book of the City of Bucklin. It did not show or attempt to show that this constitutes the only record pertaining to the matter of the canvassing of the votes. A resolution is defined by law writers as an act of a temporary character, not prescribing a permanent rule of government but merely declaratory of the will of the corporation in a given matter, and in the nature of a ministerial act. 43 C. J., p. 519, sec. 798. (8) Mere informalities in the manner in which returns are made, in the absence of fraud, will not vitiate a city's special election on the proposition of issuing bonds to erect a municipal light plant. State ex rel. Memphis v. Hackman, 273 Mo. 670, 202 S.W. 7.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Action to enjoin the City of Bucklin, in Linn County, and its officers from issuing bonds for the erection and to enjoin the erection of an electrical distribution system in said city. The trial court found for the defendants, dismissed the petition, and plaintiff appealed.

The board of aldermen of the City of Bucklin, a city of the fourth class, on November 4, 1939, passed, and the mayor approved, an ordinance providing for a special election to determine the sense of the qualified voters of the city on a proposition to increase the indebtedness of the city in the sum of $ 17,000 and to issue bonds in that sum for the purpose of acquiring or constructing an electric distribution system for the city. The election was held December 12, 1939, and the proposition carried by the requisite two-thirds majority.

Plaintiff makes these contentions: (1) That with the $ 17,000 bond issue, the city's indebtedness would exceed the limit fixed by Secs. 12 and 12a of Article 10 of the Constitution; (2) that the city entered into a contract with plaintiff on March 23, 1938, whereby plaintiff was to furnish current for 10 years to operate the city's waterworks plant, and plaintiff contends that the city "is estopped to build a competing plant during said ten years;" and (3) that the proceedings for the bond issue "are not valid because the result of the election was not declared by ordinance or resolution."

Defendants make the point that the Supreme Court does not have jurisdiction of this appeal, because, say defendants, no constitutional question is involved. Among the cases, appeals in which lie to the Supreme Court, are these: (1) In cases where the amount in dispute, exclusive of costs, exceeds the sum of $ 7500; (2) in cases involving the construction of the Constitution of the United States or of this State; and (3) in cases where a county or "other political subdivision of the State is a party." [Constitution, Art. 6, Sec. 12, and Sec. 3, Amendment of 1884; Sec. 2078, R. S. 1939.] If the present appeal lies to the Supreme Court it must be on one or more of the three grounds above mentioned. Jurisdiction of the appeal is in the Supreme Court because of the amount involved. [See Butler et al. v. Board of Education of Consolidated School Dist. No. 1 et al. (Mo. Sup.), 16 S.W.2d 44. See also Hight et al. v. City of Harrisonville, 328 Mo. 549, 41 S.W.2d 155; Hagler et al. v. City of Salem, 333 Mo. 330, 62 S.W.2d 751.] The last two cases mentioned were ruled by this court without mention of the question of jurisdiction. It will not be necessary to consider other grounds above mentioned.

At the time of the election at which the $ 17,000 bond issue was approved the assessed valuation of the City of Bucklin on which its debt limit would be determined under Sec. 12, Art. 10, Constitution, was $ 415,689. The debt limit fixed by Sec. 12, Art. 10, is "five per centum on the value of the taxable property." Sec. 12a of Art. 10, Constitution, provides that "any city in this State containing not more than thirty thousand (30,000) inhabitants, may, with the assent of two-thirds (2/3) of the voters thereof voting at an election held for that purpose, be allowed to become indebted in a larger amount than specified in section 12 of article 10 of the Constitution of this State, not exceeding an additional ten (10) per centum on the value of the taxable property therein, for the purpose of purchasing or constructing waterworks, ice plants, electric or other light plants, to be owned exclusively by the city so purchasing or constructing the same. . . ."

Under the Constitution the debt limit of the ...