Water v. City of Carlyle

• Decision Date: 18 January 1892
• Citation: 140 Ill. 445,29 N.E. 556
• Court: Illinois Supreme Court
• Parties: CARLYLE WATER, LIGHT & POWER CO. v. CITY OF CARLYLE.

140 Ill. 445

29 N.E. 556

CARLYLE WATER, LIGHT & POWER CO.

v.CITY OF CARLYLE.¹

Supreme Court of Illinois.

Jan. 18, 1892.²

Appeal from appellate court, fourth district.

Assumpsit by the Carlyle Water, Light & Power Company against the city of Carlyle to recover damages for a refusal to accept and pay for certain water hydrants. Defendant obtained judgment, which was reversed by the appellate court, and the case remanded. On the new trial plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.E. B. Green and John J. McGafligan, for appellant.

Murray, Van Hoorebeke & Ford, for appellees.

The other facts fully appear in the following statement by WILKIN, J.:

This was an action of assumpsit by appellee as assignee of the Water, Light & Power Company of St. Louis, Mo., against appellant to recover damages for a refusal to accept and pay for certain water hydrants.

The declaration consisted of one special count and the consolidated common counts. The special count set out a contract by the city of Carlyle with the Water, Light & Power Company of St. Louis, Mo., to furnish it a system of water-works according to the terms and provisions of, and to be paid for as provided by, an ordinance of said city, which was set out at length in the count. This ordinance throughout contracts with ‘The Water, Light and Power Co., St. Louis, Mo., its successors or assigns.’ It was approved October 28, 1886. The count then avers that during the progress of constructing said water-works, on, to-wit, the 1st day of July, 1887, the same, together with all rights, properties, and interests acquired by virtue of or in pursuance to said ordinance was for the consideration of, to-wit, $50,000, sold and delivered by the said Water, Light & Power Company of St. Louis, Mo., to the plaintiff. Also that it (the plaintiff) proceeded to complete a system of water-works for said city in all things in conformity with the provisions of said ordinance, of all of which the city had notice on, to-wit, August 14, 1887. It further alleged that the defendant, after the completion of the said water-works, used the same for putting out fires in said city, and for other purposes, but wholly refused to pay the plaintiff therefor, as provided and agreed upon on its part by the terms of said ordinance.

In addition to the general issue, the city filed three special pleas, designated as ‘special amended second plea,’ ‘third special plea,’ and ‘additional or fourth plea.’ The first of these alleged that the city was indebted in the sum of $1,000 other than the debt created by the contract; that the value of the taxable property within the corporate limits of the city was $256,740; that the debt existing against the city, together with the indebtedness created by said contract, exceeds the sum of 5 per cent. of said assessed value of all the property within the corporate limits of said city; and that said city did not before or at the time of entering into said contract and incurring the indebtedness thereby created provide for the collection of a direct annual tax sufficient to pay said indebtedness incurred by said contract within 20 years from the time of contracting the same, as in and by the provisions of section 12 of article 9 of the constitution of the state of Illinois it is provided. The second, that the said city did not make an appropriation concerning the erection of water-works within the corporate limits, previous to the making and entering into the said contract, as in and by section 4 of article 7 of chapter 24 of the Revised Statutes of the state of Illinois, which is a part of the charter of incorporation of said city, it is provided. And the third, that at the time of entering into the contract the said city was indebted in the sum of $1,000 other than the indebtedness created by said contract; that the indebtedness created by said contract is the sum of $44,100; that the value of all taxable property within the corporate limits of said city is $256,740; and that the indebtedness existing against said city, together with the indebtedness created by said contract, is in excess of 5 per cent. of the value of said property within the corporate limits of said city, and is in violation of section 12 of article 9 of the constitution of the state of Illinois, and is void.

To each of said special pleas demurrers were sustained. A trial was then had in the circuit court of Clinton county, a jury being waived, which resulted in a judgment for the defendant for costs of the suit, from which plaintiff prosecuted an appeal to the appellate court of the fourth district. The defendant there assigned as cross-errors the ‘sustaining demurrers to the third and fourth special pleas,’ and the refusing its fourth proposition of law submitted. At its August term, 1888, the appellate court overruled the cross-errors, and reversed the judgment of the circuit court remanding the cause. See 31 Ill. App. 325. The case came on again for trial in the circuit court at its May term, 1889, at which time the defendant presented a plea of former adjudiction, and moved the court for leave to file it. Plaintiff resisted the motion on the ground that it had been agreed by the parties, through their respective counsel, that the result of the action described in the plea should abide the decision of the present action in the appellate court, in which court the appeal above mentioned was then being prosecuted. Numerous affidavits were filed by either party; those on behalf of the plaintiff showing that such an agreement had been made, and those on the part of defendant as positively denying it. The motion was overruled, and the parties again proceeded to a trial before the court, waiving a jury. The only plea on file at this trial was the general issue. The defendant requested the court to hold as a proposition of law that no right of action is shown in this case in the plaintiff, as assignee of the Water, Light & Power Company of St. Louis, Mo., and the plaintiff cannot maintain this action in its own name, which request was refused. Judgment was entered in plaintiff's favor for $1,142.60 and costs of suit. From that judgment defendant appealed to said appellate court of the fourth district, but...