Saleno v. the City of Neosho

• Decision Date: 19 March 1895
• Citation: 30 S.W. 190,127 Mo. 627
• Parties: Saleno, Appellant, v. The City of Neosho
• Court: Missouri Supreme Court

30 S.W. 190

127 Mo. 627

Saleno, Appellant, v. The City of Neosho

Supreme Court of Missouri

March 19, 1895

Appeal from Barton Circuit Court. -- Hon. D. P. Stratton, Judge.

Reversed and remanded.

Thurman & Wray and J. H. Pratt for appellant.

(1) A contract at the common law is an agreement for a sufficient consideration to do, or not to do, some particular thing. 1 Parsons on Contracts, sec. 6. The contract is said to be complete when the minds of the contracting parties meet; when a proposition is made by one and accepted by the other of the contracting parties. Wilson v. Board, 63 Mo. 137; Langstrauss v. Ins. Co., 48 Mo. 201. (2) This contract does not fall within the purview of section 3157, in relation to county contracts, but comes within the rule that where there is a special statute in relation to the manner of doing a thing, it will prevail over a general one. Railroad v. Railroad, 105 Mo. 591; State v DeBar, 58 Mo. 398. (3) Every term and every obligation is clearly stated in the record of the city of Neosho, and assented to by plaintiff, which constitutes a valid and binding contract within the purview of section 3157, Revised Statutes, 1889. Walker v. Linn County, 72 Mo. 650; Riley v. Pettis County, 96 Mo. 318. (4) The contract in question does not create a debt for the aggregate amount which may become ultimately payable on it within the meaning of section 12, article 10, of the constitution. Words used in the constitution will be presumed to have been used in their general and accepted sense. Constitutions are intended to be understood by the masses of the people who give their sanction to them before they are binding on anyone. Cooley's Constitutional Limitations, sec. 68; State ex rel. Laughlin, 75 Mo. 154; State ex rel. v Leffingwell, 54 Mo. 471. (5) In construing the provisions of the constitution of Missouri, adopted in 1875, the court will presume that its framers had an intelligent view of the wants and necessities of cities and towns, authorized to be organized and maintained under it. State ex rel. v. Walker, 97 Mo. 162; Cooley on Const. Lim. [4 Ed.], sec. 79; Constitution of Missouri, sec. 7, art. 9. (6) The organization and maintenance of local self government by means of cities and towns having been expressly authorized by the constitution, the courts will not construe its provisions so as to impair the usefulness of such municipalities, unless the language is so clear that no other construction can be intelligently placed upon it. Valparaiso v. Gardner, 97 Ind. 1. (7) A contract to pay for a commodity to be furnished, or a service to be performed, is not a debt in the common and general acceptation of the word. It only becomes a debt when the commodity is furnished or service is performed. Wentworth v. Whitman, 1 Mass. 471; Ward v. Partridge, 11 Mass. 488; Weston v. City, 17 N.Y. 112; Garrison v. Howe, 17 N.Y. 465; Smith v. Dedham, 144 Mass. 179; Laycock v. City, 35 La. An. 497; City v. Woessner, 58 Texas, 467. (8) The word "indebted," as used in section 12, article 10, of the constitution of Missouri, does not include contracts for the annual supply of municipalities with such necessaries as light and water, and such contracts do not create a debt within the meaning of said section for the aggregate amount which ultimately may become due. Dively v. City, 27 Iowa 233; Grant v. City, 36 Iowa 401; Budd v. Budd, 59 F. 735; Water Co. v. City, 60 F. 957; State v. McCauley, 15 Cal. 454; Koppikus v. Com'rs, 16 Cal. 252; People v. Pacheco, 27 Cal. 207; East St. Louis v. Co., 98 Ill. 429; Company v. City, 31 Ill.App. 339. (9) The provisions in section 12 of article 10 of the constitution of 1875, limiting indebtedness to five per cent. of the assessed valuation, was taken from section 3, article 11, constitution of Iowa, adopted in 1846, and the cases of Dively v. Cedar Falls, 27 Iowa 233, and Grant v. City, 36 Iowa 401, were decided in 1869 and 1872, and in adopting our constitution in 1875 we adopted the construction at the time placed upon this provision by the Iowa supreme court. Cooley on Const. Lim. [4 Ed.], page 64, note 2; Valparaiso v. Gardner, 97 Ind. 1; Attorney v. Brunst, 3 Wis. 790; Skrainka v. Allen, 76 Mo. 389; Skouten v. Wood, 57 Mo. 382; Bank v. King, 73 Mo. 591; Law v. Blanchard, 116 Mass. 273; Commonwealth v. Hartnett, 1 Gray, 450.

O. L. Cravens and George Hubbert for respondent.

(1) The waterworks ordinance, number 113, so called, is void because it was never properly signed, approved or published. R. S. 1889, secs. 1599 and 1616. (2) The election ordinance is void because it was not approved by the mayor as it requires. R. S. 1889, secs. supra. (3) The election on the water ordinance is void for lack of previous notice thereof and the result was never lawfully ascertained. The notice should have been given as required by the ordinance. It is an absolute jurisdictional prerequisite to the validity of the special election and is of the essence and substance of every special election. It does not appear to have been given in this case and consequently the subsequent acts of plaintiff, under the election, never acquired any legal force or effect. 24 Cent. Law Journal, 487, 488; Stephens v. People, 89 Ill. 337; Dickey v. Bilbert, 5 Cal. 345; McPike v. Pem, 51 Mo. 63; State ex rel. v. Tucker, 32 Mo.App. 620; Bean v. Barton County, 33 Mo.App. 635; State v. Railroad, 75 Mo. 526. (4) The alleged contract was not made or subscribed in duplicate by both parties or deposited as the law requires, and is, therefore, void. R. S. 1889, secs. 1589 and 2794. There being no contract in writing, dated when made and subscribed by the parties, Saleno acquired no rights and the city incurred no liabilities; nor can there be a recovery on quantum meruit; nor any estoppel or ratification. Walcott v. Lawrence Co., 26 Mo. 26; Johnson v. School District, 67 Mo. 319; Rumsey Mfg. Co. v. Schell City, 21 Mo.App. 175; Maupin v. Franklin Co., 67 Mo. 327; Heidelberg v. St. Francois Co., 100 Mo. 69; Sturgeon v. Hampton, 88 Mo. 203; Keating v. Kansas City, 88 Mo. 203; McDonald v. Mayor, etc., 68 N.Y. 23; Stewart v. Cambridge, 125 Mass. 102; Starkey v. Minneapolis, 19 Minn. 203; Crutchfield v. Warrensburg, 30 Mo.App. 465. (5) Under the ordinance the city incurred, if anything, an indebtedness beyond its income and revenue for the year and exceeding five per centum on its taxable property. Book v. Earl, 87 Mo. 246; Bernard v. Knox Co., 105 Mo. 383. (6) The most obvious meaning of our constitution does not allow the city to incur such obligations as is alleged to such an extent. Indebtedness is a pecuniary obligation; it incurs liability of every sort, present and to accrue. 10 Am. and Eng. Encyclopedia of Law, 399; Lake Co. v. Rollins, 130 U.S. 662. (7) The limits on the city's power to levy taxes being not sufficient to pay annual expenses, appellant's claim makes the contracting of it void. Loan Association v. Topeka, 20 Wall (U.S.), 655; Gould v. City, 4 S.W. (Tex.) 650; Gas Co. v. Brickwedel, 62 Cal. 641; Book v. Earl, 87 Mo. 246; Arnold v. Hawkins, 95 Mo. 569; Bernard v. Knox Co., 105 Mo. 382; Black v. McGonigle, 103 Mo. 193; State v. Columbia, 111 Mo. 365; Company v. Lamar, 26 S.W. 1025. (8) Constitutions the same as that of Missouri and similar ones are interpreted by the courts to mean what we claim for ours. Beard v. Hopkinsville, 24 S.W. 872; Spilman v. Parkersburg, 14 S.E. 279. "The contract upon which it [the indebtedness] arose, though in itself executory, and creating only a contingent liability, is also forbidden. Prohibition of the end is prohibition of the direct, designed and appropriate means." Prince v. Quincy, 128 Ill. 443; Prince v. Quincy, 105 Ill. 138; Law v. People, 87 Ill. 385; Springfield v. Edwards, 84 Ill. 226. (9) Statutory prohibitions like those in our constitution are construed by the courts in accordance with our view. Davenport v. Kleinschmidt, 13 P. 249; State v. Atlantic City, 40 N. J. Law, 558; Water Works Co. v. Niles, 59 Mich. 311; Coulson v. Portland, Deady's Rep. 481. (10) Under the law water supply is not properly a part of necessary or ordinary expenses in a fourth class city and could not be paid for as such. (11) Appellant can not rightfully recover upon his contract because he did not comply with its material conditions. (12) The excess of authority of the board of aldermen in attempting to bind the city in a forbidden manner and to an excessive extent vitiates the contract as an entirety and appellant is without remedy. Hedges v. Dixon, 37 F. 304; Davis v. Town, 46 N. J. L. 79; State v. Mayor (N. J. 1893), 26 A. 81; Reineman v. Railroad, 7 Neb. 310; Millerstown v. Frederick, 114 Pa. St. 435; Bank v. School Dists., 57 N.W. 787; Coffin v. Indianapolis, 59 F. 221; Company v. City, 59 F. 327. (13) The monopoly attempted to be created by ordinance 113 is contrary to public policy, also against the bill of rights, and, therefore, void.

OPINION

In Banc.

Burgess J.

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 twenty years, and agreed to pay plaintiff for the use of water for city and other purposes, $ 2,000 a year for the use of fifty water hydrants for a term of twenty 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, number 113. Section 15 of said...