163 Mo. 246 | Mo. | 1901
This is an action by plaintiff as assignee of the Lebanon Light & Water Company, against the city of Lebanon, for the rental of twenty-three arc lights of two thous- and candle-power each, furnished said city during the year 1897.
On January 5, 1891, said city, by ordinance numbered 90, granted the Lebanon Light & Water Company the right, for a period of twenty years, to operate a plant for making and furnishing the city of Lebanon with electric light, and which also provided that said company and its assigns should during
This ordinance was duly submitted to a vote at an election called for that purpose, and the trial court found that at said election said franchise was duly adopted and became a binding contract on the city.
The trial court decided that the plaintiff, out of the revenues and income provided by the defendant city for the year 1897, was only entitled to the sum of $2,211.10, and not the full amount contracted for, and that the balance of said revenues provided for said year were properly appropriated to the payment of the expenses of the city government- for that year. The correctness of this ruling is the only question challenged by the plaintiff’s appeal.
The trial court by declarations of law found that -the “actual income of the city of Lebanon, for the year 1897, was $1,197.27.”
Plaintiff asked the following declarations of law:
“The court finds and declares the law in this case to.be that the contract entered into between the city of Lebanon and the Lebanon Light & Water Company is a binding contract on the said city; and, further, that the plaintiff should have -judgment for three thousand dollars, and eight per cent on deferred payments for the twenty-three arc lights furnished defendant during the year 1897; provided, that the same could be paid ■out of the income and revenue provided by said city for the year 1897, after deducting therefrom the amount that might be necessary to pay the reasonable salary allowed by law and the ordinances of said city, if any, to the mayor, council,
The court refused to give these declarations of law, and
The court then of its own motion gave the following declarations :
“The necessary current expenses of said city, within the meaning of the foregoing instruction, are the reasonable amounts that said city'would be required by law to pay under all laws and ordinances existing at the time of making such contract. Any person or corporation contracting with any such city for the purpose of furnishing electric lights will be deemed to have made said contract with the knowledge of the provisions of section 11, article 10, of the Constitution of the State of Missouri, and also with the knowledge of all laws and ordinances in force at the time of making such contract; and all reasonable sums that may be required to be paid by said city under the laws and ordinances that are in force at the time of making such contract will take precedence over such contract and be a prior claim upon the revenues of said city for any year. The court further finds that the sum testified to by the witness, Stebbins, of $1,982.87, paid for current expenses of said city for the year 1897, were all reasonable amounts, and were paid under and by provisions of laws and ordinances that were in force at the time of making the contract sued on, and the authorities of said city were justified in making such payments in advance of the claim of the plaintiff herein. The court further finds that there is the sum of $2,214.44, of the revenues and income of said town in, excess of the current expenses of said town as above set forth, and that under the evidence in this case the plaintiff is entitled.to recover said sum upon the contract sued on.”
To the giving of these declarations of law the plaintiff duly excepted.
The only evidence in this case concerning the expenses of the city government for 1897 was the testimony of clerk Steb
After unsuccessful motion for new trial plaintiff appeals.
Defendant appeals from the judgment of the court upon the ground that the election held for the adoption of said ordinance numbered 90 was null and void, as well also, as the tax levied and collected in pursuance thereof, and that the judgment should have been for defendant.
It is claimed by defendant that as it is a city of the fourth class, it is divided into three wards, and as the election was held in only one ward it was in violation of the statute; and that as many of the ballots voted were not in accordance with law in that they did not contain the words, “and tax levy,” while they were counted “for electric light contract and tax levy,” that the election was void, and the contract without authority. But these were at most but irregularities, and in the absence of fraud did not vitiate the election. [State ex rel. v. Town of Westport, 116 Mo. 582.]
Defendant also asserts that there was no evidence adduced at the trial that notice of said election would be held was given by the mayor, but no such question was raised by the pleadings. All of the defenses were special defenses, and it is not alleged in any of them that such notice was not given, and the point can not be raised outside of the record.
It is further insisted by defendant that the contract to pay $3,000 per annum was clearly a contract in excess of the annual income and revenue for any such year, and was not authorized by the voters in the manner required by law,-and was in conflict with the Constitution and statutes of this State.
The contention that the election was not held and conducted in substantial compliance with the requirements of article 10, sections 11 and 12 of the Constitution of this State, is not, we think, sustained by the record.
Our conclusion is that defendant’s appeal is without merit, but that the court erred to the prejudice of plaintiff for reasons indicated, in refusing the declaration of law asked by it in regard to what were the necessary expenses of the city government, for the year 1897, and in declaring the law to be otherwise.
We therefore reverse the judgment and remand the cause, with directions to the court below to enter up judgment in favor of plaintiff for the amount of its claim and interest.