National Waterworks Co. of New York v. School Dist. of Kansas City
| Decision Date | 08 November 1886 |
| Citation | 23 Mo.App. 227 |
| Parties | THE NATIONAL WATER WORKS COMPANY OF NEW YORK, Respondent, v. THE SCHOOL DISTRICT OF KANSAS CITY, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL fro Jackson Circuit Court, HON. TURNER A. GILL, Judge.
Affirmed.
Statement of case by the court.
This is an action to recover of the defendant compensation for water furnished it by plaintiff between the first day of July 1880, and the first day of January, 1881, for the use of certain designated school buildings situate within the corporate limits of the city.
The answer pleaded that the plaintiff corporation owned and operated the water works of Kansas City under a contract between it and the city, entered into pursuant to authority granted by an act of the general assembly of the state, and that as a part of the consideration of granting the franchise to said company to furnish pure water for said city, it was expressly stipulated that the plaintiff should at all times thereafter supply water free of charge for all public buildings and offices of said city. It is then alleged that the school buildings, to which the water in question was furnished, are public buildings within the terms of this contract and are, therefore, exempt from water rates.
The answer then further pleaded a former recovery between the same parties on the same cause of action. The basis for this plea rests on the admitted fact, that in April, 1881, long prior to the institution of this action, the plaintiff brought suit against the defendant in the United States circuit court for the western division of Missouri, to recover judgment on the same cause of action, wherein the same defence was interposed first above stated. That on a trial had therein, before a jury, at the conclusion of the evidence, the court instructed the jury to the effect that under the pleadings and evidence the plaintiff could not recover. Thereupon the plaintiff took a non-suit, and afterwards, within due time, filed its motion to set aside said non-suit, which motion, after argument and consideration, the court overruled.
On demurrer interposed by defendant the court struck out this last defence.
The cause was submitted for trial to the court sitting as a jury. The section of the contract between the city and the water works company is as follows: " The city may also use and take, and the company is to suppy from the water works, as now constructed and hereafter extended, water for use in all public buildings and offices of the city, and for any fountains the city may erect on the public ground, and for any drinking places the city may choose to erect in any portion of the city, and for basins for watering stock from waste water out of such fountains, * * * said company shall not have any pay or compensation for water the city may so use or take, other than the hydrant rent, to be paid as by this ordinance is provided."
The following facts were agreed upon at the trial:
" 1. That both plaintiff and defendant are corporations.
2. That the plaintiff erected and is now operating in the City of Kansas, with pipes extending beyond the limits of the city, a system of water works, and that it is authorized so to do by ordinances number 10,524 and 14,776 of said city, and said ordinances may be considered as read in evidence and the acceptance of the company.
3. The public schools were established and have been organized under acts of the legislature, incorporating city in 1853, acts 1861, 1863, 1866, 1867, and following years, and during that year 1867, under the law as then existing, a board of education was elected, consisting of W. E. Sheffield, E H. Allen, J. A. Bachman, A. A. Bainbridge, E. H. Spaulding and Patrick Shannon, and the system as then organized has been continued ever since under the several changes that have taken place in the law during the time.
4. Ever since the school district was organized, in 1867, it has embraced territory outside of the city limits.
5. The school buildings of defendant at present time are as follows Washington, Humboldt, Lathrop, Morse, Franklin, Woodland, Central, Benton, Switzer, Chase, Karnes, Martin, Lincoln, and Sumner. And of these, the Martin, having three rooms, and the Woodland, twelve rooms, are situated outside of the city limits, and the date of the erection of these several school houses is as follows:
Washington, in 1867; Humboldt, in 1868; Central, in 1868; Lathrop, in 1869; Franklin, in 1869; Morse, in 1870; Benton, in 1870; Woodland, in 1871; Lincoln, in 1879; Karnes, in 1880; Switzer, in 1881; Chase, in 1881; Martin, in 1883; Sumner, in 1883.
6. The following houses now take water from plaintiff, and the dates of commencing are as follows:
Central, January 1, 1877; Washington, January 1, 1877; Humboldt, November, 1875; Franklin, November, 1875; Lathrop, November, 1875; Benton, November, 1875; Lincoln, July 1, 1878; Woodland, September 27, 1882; Switzer, September 28, 1883; Sumner, November 12, 1883.
7. The water taken was all paid for by defendant until July 1, 1830, at which time defendant was taking and using water in the Franklin, Lathrop, Humboldt, Central, Washington, Lincoln, and Benton schools, and so continued to take in said houses from July 1, 1880, to January 1, 1881, and if defendant is liable, the amount sued for during said period is correct."
The court found the issues for plaintiff, and entered judgment accordingly. Defendant has appealed.
GAGE, LADD & SMALL, for the appellant.
I. The court erred in sustaining the demurrer to the second defence pleaded in the answer. That defence was a valid plea of res adjudicata. The decision in that case was a final judgment; it was " the final determination of the rights of the parties in the action." Rev. Stat., sect. 3672; Collier v. Weldon and wife, 1 Mo. 1; Chiles v. Wallace, 83 Mo. 84; Moody v. Deutsch, 20 Cent. L. J. No. 13, p. 33. In such cases as this, there is no non-suit in the proper sense of the word. By taking a voluntary non-suit a plaintiff goes out of court absolutely and finally. But when he says, I take a non-suit with leave to move to set it aside, or accompanies his non-suit with such a motion, he does not, in fact, take a non-suit; he still holds on to the court and the defendant, and litigates further. The effect of this proceeding is merely to waive the formality of an adverse verdict, to admit that the jury will do as the court has already directed, and to submit his case, in the most favorable manner for himself, to the court, as matter of law. Submitting his case in that manner, the decision is no less final or binding than if made upon demurrer or verdict.
II. The court also erred in refusing to declare the law as asked by defendant. The public school buildings of the city were, in fact, public buildings of the city even though the management and control and the title to the property had been vested by law in a separate board. The management, property and funds belonging to the schools of Kansas City, were originally vested in the municipal corporation. Subsequently, in order to separate them from politics, they were committed to the charge of different officers from those who managed the other affairs of the city. In other words the city was incorporated over again for school purposes, and the school property belonging to the city for the purposes of better management was transferred to the new board. This branch of the municipal administration has been continued ever since in this separate organization, but it has always, and is to-day, just as much a part of the city government as the police board. In a proper and just sense Kansas City still has public schools and public school buildings, and it is not to be doubted that in fact it was the intention and meaning of this contract to include the school buildings within the city, in the term " public buildings of the city."
KARNES & ESS, for the respondent.
I. From 1861 to the present time the corporation known as the " City of Kansas," and that known as the " Kansas City School District," have been entirely distinct, and neither having any control over the affairs of the other, or any interference therewith in any way. These school houses were only in part buildings in the city, and in no sense whatever could they be said to be buildings of the city.
II. The language of the ordinance contract is " public buildings and offices of the city." This could not mean such buildings in the city, as this would include all located in the city, as the postoffice, custom house, county court house, etc. The city intended to provide for its own buildings and offices, and made no provision for other public buildings.
III. As to so much of the school district as was embraced within the limits of the city, there were two corporations, occupying the same territory, at the same time. This can be done. Dillon on Mun. Corp. [3 Ed.] sect. 24. Though the school district may take the name of the city, there is scarcely any limit to the territory which it may embrace on the outside, and this can be legally done. State v. Board Ed. Appleton City, 53 Mo. 127; State v. Miller, 65 Mo. 50; Henry v. Dulle, 74 Mo. 443; State v. Heiser, 60 Mo. 540.
IV. The record in this case shows that the plaintiff took a non-suit before the case was submitted to the jury. As soon as the court announced what the instructions would be the non-suit was taken. This it had a right to do. Hensley v Peck, 13 Mo. 587; Templeton v. Wolf, 19 Mo. 101; Lawrence v. Shreve, 26 Mo. 492; Benoist v. Murrin, 48 Mo. 52. After the non-suit had been taken in the United States court, plaintiff could have commenced a new suit at once in the same court. Homer v. Brown, 16 How. [U. S.] 354; Insurance Co. v. Broughton, 109 U.S. 121....
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