State ex rel. Kansas City Ins. Agent's Ass'n v. Kansas City

• Decision Date: 17 March 1928
• Docket Number: 28248
• Citation: 4 S.W.2d 427,319 Mo. 386
• Parties: The State ex rel. Kansas City Insurance Agents' Association v. Kansas City et al., Appellants
• Court: Missouri Supreme Court

4 S.W.2d 427

319 Mo. 386

The State ex rel. Kansas City Insurance Agents' Association v. Kansas City et al., Appellants

No. 28248

Supreme Court of Missouri

March 17, 1928

Appeal from Jackson Circuit Court; Hon. Charles A. Burney Judge.

Affirmed.

John T. Barker and R. J. Ingraham for appellants.

(1) This ordinance is illegal and the city had no authority to pass it; it authorizes the fire patrol to perform a service free and independent of the city government; nothing is said about the equipment to be used, how many men are to be employed or the amount of work to be done; the city has no control over the fire patrol, but it operates as it sees fit without any superintending control by the city, and such ordinance is clearly illegal. State ex rel. v. St Louis, 216 Mo. 47; Mathews v. Alexandria, 68 Mo. 115; Ex parte Cavanaugh, 313 Mo. 375; City v. Ice Co., 296 S.W. 993; State ex rel. v. St. Louis, 161 Mo. 382; People ex rel. v. Company, 255 Ill 470; Commonwealth v. Malatsky, 203 Mass. 241; R. S. 1919, sec. 2164; 1 Dillon on Mun. Corp., sec. 244; 1 McQuillin on Mun. Corp., sec. 382; Egan v. City, 133 P. 294; Home v. Chicago, 41 N.E. 893; Farmer v. St. Paul, 67 N.W. 990; Fox v. Mohawk, 59 N.E. 353; Cemetery v. Boston, 33 N.W. 695; 19 R. C. L. 717. (2) The ordinance does not provide for a payment to the fire control for services rendered. It simply provides for an appropriation of the fire patrol to render a municipal service to Kansas City. Such funds can only be administered by municipal authorities. A city cannot transfer funds to a private body, and allow such body to dispose of such funds free and clear of municipal supervision and control. State ex rel. v. St. Louis, 216 Mo. 47; State ex rel. v. Seibert, 123 Mo. 429; Ex parte Cavanaugh, 313 Mo. 375; City v. Ice Co., 296 S.W. 993; State ex rel. v. St. Louis, 161 Mo. 382; 19 R. C. L. 717. (3) If the work performed by the fire patrol is solely for the purpose of minimizing and reducing fire insurance losses for the benefit of fire insurance companies, then the city had no legal authority to use public tax money for such purpose, and cannot legally contract with the fire patrol to do so. Coleman v. Ins. Patrol, 122 La. 626; Newcomb v. Protective Department, 6 L. R. A. 778; State ex rel. v. St. Louis, 216 Mo. 47; Mo. Constitution, Art. 4, secs. 46, 47; Art. 10, sec. 3; Art. 9, sec. 6. (4) This ordinance allows Kansas City to cease appropriating money to this private corporation at any time, and when Kansas City did cease all rights and liabilities under such ordinance were destroyed. Section 8, Ordinance No. 23605. (5) Mandamus is not the proper remedy. State ex rel. v. Hudson, 226 Mo. 266; State ex rel. v. County, 39 Mo. 375; Mansfield v. Fuller, 50 Mo. 338; State ex rel. v. Press, 159 Mo. 442; State ex rel. v. Calhoun, 201 Mo.App. 374; United States v. Railroad, 138 F. 852.

Hogsett & Boyle for respondent.

(1) The franchise ordinance, upon acceptance by relator, became a formal contract. Water Co. v. City of Aurora, 129 Mo. 578; Omaha Water Co. v. Omaha, 147 F. 1; New Jersey v. Yard, 95 U.S. 104; City Ry. Co. v Railroad Co., 166 U.S. 557; Western Paving Co. v. Railroad Co., 128 Ind. 525; Mercantile Trust Co. v. Railroad Co., 101 F. 350; City of El Dorado v. Power Co., 250 S.W. 882; Lackey v. Water Co., 80 Ark. 108; City of Mena v. Tomlinson, 118 Ark. 166. (2) The making of the contract was within the charter powers of the city. There is implied in a grant of power to a municipal corporation all the necessary incidentals to render the grant effectual. State ex rel. v. Hackmann, 273 Mo. 689. The contract is clearly within the powers granted to the city to enact ordinances to "preserve persons and property from danger and destruction" and to "promote the general welfare." Sec. 1, Art. 3, Kansas City Charter 1889; Secs. 5281, 6269, 6209, R. S. 1899. By the charters of 1908 and 1925 the people have confirmed the validity of the contract, by giving express authority to make a contract with a private corporation for the maintenance of a fire patrol. Sec. 1, Art. 3, Kansas City Charter 1908; Sec. 1, Art. 1, Kansas City Charter 1925. These charter provisions have all the sanction of a state statute. St. Louis v. Nash, 260 S.W. 986; Ex parte Smith, 231 Mo. 122; State ex rel. Garner v. Tel. Co., 189 Mo. 83. Contracts between cities and private institutions for the furnishing of service tending to promote the general welfare, are universally upheld. St. Louis Hospital Assn. v. St. Louis, 15 Mo. 592; State ex rel. St. Louis v. Seibert, 123 Mo. 424; Valley Spring Hog Co. v. Plagmann, 282 Mo. 1; Howsmon v. Trenton Water Co., 119 Mo. 313; Aurora Water Co. v. City of Aurora, 129 Mo. 540; City of Lexington v. Lafayette Co. Bank, 165 Mo. 671; Webb City & Waterworks Co. v. Webb City, 78 Mo.App. 422. (3) The contract does not constitute a delegation or abrogation of the city's governmental power, but rather a proper exercise of the city's power to promote the general welfare. Barber Asphalt Paving Co. v. Louisville, 29 Ky. L. R. 1255, 9 L. R. A. (N. S.) 156; Fitch v. Seymour Water Co., 139 Ind. 214; Mitchell v. Gadsden, 145 Ala. 137; Birmingham Waterworks Co. v. Birmingham, 211 F. 501; Birmingham v. Waterworks Co., 213 F. 450; Hone v. Isle Water Co., 104 Me. 211, 21 L. R. A. (N. S.) 1025; Manske v. City of Milwaukee, 123 Wis. 172; City of Macon v. Bibb County, 138 Ga. 366. By way of analogy, it has been held that the operation of a city hospital is an exercise of governmental power (Zummo v. Kansas City, 225 S.W. 934), yet that a city may make a contract with a private person to furnish hospital service. State ex rel. v. Seibert, 123 Mo. 432; St. Louis Hospital Assn. v. St. Louis, 15 Mo. 592; City of McPherson v. Nichols, 48 Kan. 430; Tucker v. Virginia City, 4 Nev. 20. Garbage disposal is an exercise of the police power, yet the city may contract with a private person to furnish such service. Valley Spring Hog Co. v. Plagmann, 282 Mo. 10. Street cleaning is the exercise of governmental power (Cassidy v. St. Joseph, 247 Mo. 197), yet the city may make a valid contract with a private person to furnish that service. Rossvally v. New Orleans, 19 La. Ann. 7; Mott v. City of Utica, 89 N.Y.S. 168; Appeal of People, 4 Walk. (Pa.) 318. (4) The contract is not invalid on the alleged ground that the city has no control over the operation of the patrol by relator. This question is not before the court for review, because the city made no such defense below, and the case must be decided here on the same theory upon which it was tried. Carlson v. Wells, 276 S.W. 30; Stewart v. Trust Co., 283 Mo. 375; Shelby v. Fire Ins. Co., 262 S.W. 691; Brier v. Bank, 225 Mo. 673; Tomlinson v. Ellison, 104 Mo. 105; Knapp v. Knapp & Co., 127 Mo. 54; In re Poe's Estate, 272 S.W. 707. There is no rule requiring contracts for the furnishing of service to a municipality to reserve to the city the power to supervise the details of performance, municipal contracts within the charter powers being measured by the same tests applicable to other contracts. Dillon on Mun. Corp. (4 Ed.) secs. 472, 476, 66; 28 Cyc. 634-636; Seattle v. Stirrat, 55 Wash. 560; Western Savings Fund Society v. Philadelphia, 31 Pa. (7 Casey) 175; Pullman v. New York, 54 Barb. 169. (5) The contract is not invalid on the alleged ground that it fails to prescribe with sufficient certainty the nature of the service to be performed. This point is not preserved for review, because not presented below, and the case must be decided here on the same theory upon which it was tried. Moreover, the contract prescribes with certainty the service to be performed. There is no rule of law which renders a contract void merely because not as specific as it could have been made. (6) The provision in the contract that the revenue from license fees shall be appropriated and paid over to relator in payment for the service rendered does not invalidate the contract. The city does not turn over "public money to be disbursed by a private person," as claimed by the city, but merely pays a price for service rendered, which price is measured by the amount of "revenues derived from license fees." If this contract were invalidated on the ground alleged, every municipal contract would be invalid, because all sums paid thereunder by the city are derived originally from taxes or license fees. It is a common practice for a city to make a contract for service, and to agree therein to levy taxes to produce the revenue necessary to pay for the service. Howsmon v. Trenton Water Co., 119 Mo. 306; Mott v. Cherryvale Water Co., 48 Kan. 12; Hone v. Isle Water Co., 104 Me. 211; State ex rel. Ellis v. Tampa Waterworks Co., 56 Fla. 858; Creston Waterworks Co. v. Creston, 101 Iowa 687; Lake Charles Ice Co. v. City of Lake Charles, 106 La. 65. (7) The contract is not in conflict with any provision of the Missouri Constitution, forbidding the use of public money for a private purpose. The use of money to obtain fire patrol service is a use thereof for a public purpose, not a private purpose. Jasper Co. Farm Bureau v. Jasper Co., 286 S.W. 381; State ex rel. St. Louis v. Seibert, 123 Mo. 424; State ex rel. Boonville v. Hackmann, 293 Mo. 313; Reid v. Trowbridge, 78 Miss. 542; Halbruegger v. St. Louis, 302 Mo. 573. (8) The contract is not subject to cancellation by the city except in case of non-performance by the relator. Section 8 merely provides that the relator's rights shall be forfeited if relator fails to perform, and that relator may declare a forfeiture if the city fails to perform. Relator not having failed to perform, the city has no right to declare a forfeiture. Ohio Public Service Co. v. Ohio, 47 S.Ct. 480. To permit the city to declare a forfeiture based on its own breach of contract, would be to permit the...