Saleno v. City of Neosho

Decision Date19 March 1895
Citation127 Mo. 627,30 S.W. 190
PartiesSALENO v. CITY OF NEOSHO.
CourtMissouri Supreme Court

Action by S. V. Saleno against the city of Neosho on a contract under which plaintiff erected for defendant city a system of waterworks, for which the city agreed to pay a stated sum annually. From a judgment in favor of the city, plaintiff appeals. Reversed and remanded.

This is an action upon a contract alleged to have been entered into between plaintiff and defendant, under which plaintiff erected for defendant (a city of the fourth class) a system of waterworks, and defendant granted to plaintiff a waterworks franchise for a term of 20 years, and agreed to pay plaintiff, for the use of water for city and other purposes, $2,000 a year for the use of 50 water hydrants for a term of 20 years, and $30 per year for each additional hydrant which the city, by its board of aldermen, might order for the use and benefit of the city. The action is for hydrant rental due. As to the amount there is no controversy. The validity of the contract is denied by defendant, the only evidence thereof and details being included in an ordinance of said defendant (No. 113). Section 15 of said ordinance reads as follows: "This ordinance shall become binding as a contract on the said city of Neosho, in the event that said S. V. Saleno or his assigns shall, within ten days from the passage and publication thereof, file with the city clerk of said city his written acceptance of the terms, obligations, and conditions of this ordinance; and upon such acceptance, this ordinance shall constitute the contract, and shall be the measure of the rights and liabilities of the said city and of the said S. V. Saleno." On the 15th day of October, 1890, this ordinance was submitted to a vote of the people for ratification after its passage by the board of aldermen, under authority of an ordinance (No. 114) in which was set forth the object and purpose of the election to be held for the ratification or rejection of the contract as set forth in said ordinance first named, which last-named ordinance provided for all the details for holding the election, including notice thereof, polling places, the kind of ballots to be used, manner of ascertaining and declaring the result of the election, and certifying the same. An election was held in pursuance of the provisions of this ordinance, which resulted in an almost unanimous vote in favor of ratifying the contract as set forth by Ordinance No. 113. On the day next after the election, being October 16, 1890, the city clerk, by order of the board of aldermen, notified plaintiff that the contract had been ratified by a vote of the people of Neosho, voting at an election held in said city on the day previous, at which there were more than two-thirds of the legal votes polled at said election in favor of ratifying said Ordinance No. 113; there being 293 votes polled for its ratification, and 32 votes against it. On the 17th day of October, 1890, plaintiff filed with said board his written acceptance of the contract. Plaintiff then gave bond, entered upon the construction of the waterworks, which were completed, and subsequently, to wit, November 23, 1891, accepted by the board of aldermen. By the terms of the contract, the hydrant rental is made payable semiannually, on the 1st days of January and July of each year. This suit was brought for the hydrant rental which became due July 1, 1892. The trial resulted in a judgment for defendant, and from the judgment plaintiff appealed.

Thurman & Wray and Jas. H. Pratt, for appellant. O. L. Cravens and Geo. Hubbert, for respondent.

BURGESS, J. (after stating the facts).

The court declared the law to be: First. That the contract set forth in Ordinance No. 113, ratified by the people, and accepted by the plaintiff, as shown by the records of the city, was not sufficient to constitute a valid contract between plaintiff and defendant, and refused to declare the law to be that it was not necessary, in order to the validity of the contract, that it should be upon one paper, signed by both plaintiff and defendant and that if the terms of the contract in said ordinance were ratified by the voters of defendant city, at an election lawfully held for that purpose, and plaintiff thereafter, in writing, accepted such terms, the same constituted a valid contract. Second. That if the hydrant rental could not be paid out of the levy of 50 cents on the $100, after paying all current expenses of the city, it constituted a debt for the amount that might ultimately become due, and refused to declare the law to be that a contract to pay $2,000 a year for hydrant rental for a term of 20 years did not constitute a debt, within the meaning of section 12, art. 10, of the state constitution, without reference to performance.

Plaintiff's first contention is that Ordinance No. 113 was signed by the acting mayor, attested by the clerk, ratified by a vote of the voters of the city of Neosho, and accepted in writing by the plaintiff, and constituted a valid contract for furnishing said city with water according to the terms and conditions as set forth in said ordinance. Defendant is a city of the fourth class. By section 1599, Rev. St., which pertains to such cities, it is provided that "no bill shall become an ordinance until the same is signed by the president of the board of aldermen and the mayor." By section 1616, the mayor when present is ex officio president of the board of aldermen. The record shows that, although the mayor was present and presiding at the meeting of the board when Ordinance No. 113 was put upon its final passage, he did not authenticate its passage by his signature as such president of the board; and, because of his failure to do so, it is insisted by defendant that the ordinance never became effective. It is difficult to see the force of this argument, when it is provided by section 1618, Rev. St., that, if the mayor should neglect or refuse to sign any ordinance or return the same with his objections in writing at the next meeting of the board of aldermen, the same shall become a law without his signature. By the very terms of the section last quoted, on the neglect or refusal of the mayor to sign the ordinance or to return the same to the next meeting of the board of aldermen with his objections in writing thereto, it became a law, and his failure to so return it must be regarded as equivalent to signing it. The notice of holding the election with respect to the ratification of the ordinance by the voters, and everything pertaining thereto, as well, also, as the...

To continue reading

Request your trial
76 cases
  • Hight v. City of Harrisonville, 30446.
    • United States
    • United States State Supreme Court of Missouri
    • July 29, 1931
    ......Sec. 12a. Art. X, Missouri Constitution; State ex rel. v. Neosho, 203 Mo. 40; Bell v. Fayette, 28 S.W. (2d) 361; Shields v. City of Loveland, 74 Colo. 27, 218 Pac. 913; Franklin Trust Co. v. City of Loveland, 3 ...839, 295 S.W. 1004; Shelton v. Los Angeles, 275 Pac. 421; Searle v. Town of Haxtun, 271 Pac. 629; Miller v. City of Buhl, 284 Pac. 843; Saleno v. Neosho, 127 Mo. 627; Lamar Water & Electric Light Co. v. Lamar, 140 Mo. 145. (4) The contract is valid as against the miscellaneous objections ......
  • Verdin v. City of St. Louis
    • United States
    • United States State Supreme Court of Missouri
    • November 26, 1895
    ......Y. 556. State v. Mead, 71 Mo. 266, enunciates the same principle. See, also, Saleno v. Neosho (Mo. Sup.) 30 S. W. 190, of similar purport. .         The foregoing authorities authorize the conclusion that the failure to ......
  • Tate v. School District, 27980.
    • United States
    • United States State Supreme Court of Missouri
    • February 3, 1930
    ......350; State v. Trimble, 309 Mo. 546, 274 S.W. 683; Light & Magnetic Water Co. v. City of Lebanon, 163 Mo. 254; City of Brunswick ex rel. v. Scott, 219 Mo. App. 45, 275 S.W. 994; Carter ...Saleno v. Neosho, 127 Mo. 627; Water Co. v. Lamar, 140 Mo. 145; State ex rel. v. Neosho, 203 Mo. 75; Myers ......
  • City of Phoenix v. Phoenix Civic Auditorium & Convention Center Ass'n, Inc., 8394
    • United States
    • Supreme Court of Arizona
    • December 13, 1965
    ...... Smith v. Dedham, 144 Mass. 177, 10 N.E. 782; Crowder v. Town of Sullivan, 128 Ind. 486, 28 N.E. 94 [13 L.R.A. 647]; Saleno v. City of Neosho, 127 Mo. 627, 30 S.W. 190 [27 L.R.A. 769]; City of Valparaiso v. Gardner, 97 Ind. 1; New Orleans Gaslight Co. v. City of New ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT