Webb City & C. Waterworks Co. v. City of Carterville

• Decision Date: 14 December 1897
• Citation: 43 S.W. 625,142 Mo. 101
• Parties: WEBB CITY & C. WATERWORKS CO. v. CITY OF CARTERVILLE.
• Court: Missouri Supreme Court

43 S.W. 625

142 Mo. 101

WEBB CITY & C. WATERWORKS CO. v. CITY OF CARTERVILLE.

Supreme Court of Missouri.

December 14, 1897.

CITIES — CONTRACTS — NECESSARY CURRENT EXPENSES — INCOME.

1. In determining the necessary current expenses of a city to see if it has income in excess thereof allowing judgment against it for rental of hydrants, only the salaries of its officers and of a reasonable police force are to be considered; Rev. St. 1889, § 4977, declaring that, in case execution be issued against a city, and returned unsatisfied, it may be compelled to levy, within constitutional limits, a tax to be paid the execution creditor, except such amount as may be necessary to pay "the reasonable salary allowed by law to the mayor, council, assessor, marshal, constable, attorney, and a reasonable police force."

2. Money derived by a city from sale of bonds is no part of its income and revenue, as respects power to contract debts in any year in excess thereof.

In banc. Appeal from circuit court, Jasper county; Thomas Hackney, Special Judge.

Action by the Webb City & Carterville Waterworks Company against the city of Carterville. Judgment for defendant. Plaintiff appeals. Reversed.

Stewart, Cunningham & Eliot and Galen & A. E. Spencer, for appellant. McReynolds & Halliburton, for respondent.

BURGESS, J.

This is an action by plaintiff, as the assignee of one James O'Neil, against defendant, for the sum of $5,406.75, alleged to be due plaintiff from defendant for hydrant rental. There was judgment for defendant in the circuit court, from which plaintiff appealed.

On or about the 27th day of July, 1889, the board of aldermen of the defendant city, by ordinance duly passed, numbered 27, granted to said O'Neil, his associates and assigns, for the full period of 20 years from the completion thereof, the exclusive right to construct, erect, and operate in said city a system of waterworks, and to supply the city and its inhabitants with water. Under the contract, defendant was to pay $50 per annum for the use of each hydrant erected by O'Neil, which was to be paid in equal installments of $12.50 each after the expiration of each quarter, viz. on the 10th day of April, July, October, and January of each year. O'Neil accepted the terms of the contract, which was fully consummated, and this suit is brought by plaintiff, who succeeded, as assignee, to all his interest in the contract. The works were constructed, the hydrants erected, and defendant had the use of the hydrants according to contract. No provision for the levy of a special tax to pay said hydrant rental was ever at any time made by the city. The defendant answered the plaintiff's petition, substantially denying each and every averment thereof, and setting up the special defenses: First. That at the time of the passage of Ordinance No. 27 defendant was, and for years prior thereto was, and ever since has been, levying a tax upon the property within its limits "to more than the full amount and extent authorized and permitted by the constitution and laws of Missouri," and that all the revenue derived from such tax was and is required and used in paying the ordinary current expenses and charges of carrying on the city government outside of the indebtedness attempted to be created by said ordinance, and in paying past indebtedness created before it became a city of the fourth class, and that from such levy and collection defendant has no means or money to pay plaintiff's claim. Second. That at no time since said ordinance was passed could the defendant, by the levy of the tax allowed by law, have raised the necessary funds to pay the debt so attempted to be created, or any part thereof, after paying its ordinary running expenses, and keeping up its city government. Third. That said ordinance attempted to create an indebtedness for the defendant city to an amount, including existing indebtedness, exceeding in the aggregate 5 per centum of the value of the taxable property of the city; that defendant at that time had an outstanding indebtedness of over $5,000; and that the indebtedness attempted to be created by said ordinance and contract exceeded 5 per centum of the taxable property within defendant's limits. Fourth. That the indebtedness attempted to be created by said ordinance and contract is more than 5 per centum of the taxable value of the property within defendant's limits, as shown by the state and county assessment for any year after the attempted creation of such indebtedness. Fifth. That as to $3,331.75 of the debt sued for by the plaintiff, defendant had issued to plaintiff its warrants on its treasurer, and that said warrants were delivered and accepted in payment or said indebtedness; and that plaintiff's remedy, if any, as to said amount is by suit upon such warrants. Trial by jury was waived, and the cause was tried by the court sitting as a jury.

It was admitted before the court that defendant, during all the transactions in question, was a city of the fourth class, having more than 1,000 and less than 10,000 inhabitants. It was proved that during all the time in question the defendant had had the actual use of the hydrants. Plaintiff tendered at the trial, and offered to surrender to defendant, six certain warrants of defendant, given for part of the water rental sued for, being warrants of numbers and dates following: No. 60, dated October 13, 1892; No. 115, dated January 20, 1893; No. 151, dated April 13, 1893; No. 42, dated July 6, 1893; No. 72, dated October 27, 1893; and No. 127, dated January 4, 1894. And proved that said warrants were not taken in payment of said rental, but were taken to be in payment of rental only when in fact said warrants should be paid. Plaintiff then proved the rentals sued for to have been due quarterly, as follows: For the year 1892: Third quarter, ending September 30, $512.50; fourth quarter, ending December 31, $512.50. For the year 1893: First quarter, ending March 31, $512.50; second quarter, ending June 30, $512.50; third quarter, ending September 30, $656.75; fourth quarter, ending December 31, $675. For the year 1894: First quarter, ending March 31, $675; second quarter, ending June 30, $675; third quarter, ending September 30, $675, — total, $5,406.75. Defendant proved the assessed value of property within its limits as per its tax books, to wit: Real estate, personal property, merchandise, and insurance to have been, in 1891, $159,844; 1892, $453,134 1893, $558,395; 1894, $643,012, — and that the tax levy for all these years was 50 cents on the $100 for each year. Defendant then proved that the books of its treasurer for the years 1892, 1893, and 1894 showed receipts and disbursements as follows: For the year 1892, total receipts, $7,215.16, including $4,000, proceeds of the sale of bonds of the city, and disbursements, $6,881.50, including $1,500 bonds paid. For the year 1893, total receipts, $4,997.23, and disbursements, $5,222.10. For the year 1894, total receipts, $9,747.90, including $6,000, proceeds of sale of city bonds, and disbursements, $9,613.67, including $6,000, bonds and interest paid. What was the particular character or purpose of these disbursements, or by what authority they were made, was not shown, except as to the $1,500 in 1892 and the $6,000 in 1894, paid on bonds and interest due on bonds.

Over the plaintiff's objection, W. L. Wees was permitted to testify that he had examined the books of the city clerk, and had figured up the total amount of receipts, as shown by those books and by the treasurer's books, and had made a statement showing the amount of such receipts and the amount of warrants issued, the amount of the warrants being obtained from the warrant stub book and the journal of the board of aldermen; that he has prepared a statement of those matters, which included also money received (as shown by the treasurer's books) from sale of bonds during said times. Defendant offered said statement as the result of the witness' investigations, and this statement was put in evidence over the plaintiff's objection. That statement shows receipts and warrants ordered for the years 1892, 1893, and 1894, as follows: In 1892, receipts including $4,000 proceeds of bonds sold, $6,930.41, instead of $7,215.16, as previously shown from the treasurer's books for 1892, and a total of warrants issued and bonds and interest paid, $6,493.02. For the year 1893 it shows receipts, $5,012.23, instead of $4,997.23, as shown by preceding statement from the treasurer's books, and a total of warrants, $5,341.78. For the year 1894 it shows total receipts, including $6,000,...