No. 2 | Mo. | Jun 11, 1901
— This is an action by plaintiff as assignee of the Lebanon Light & Water Company to recover of the defendant, a city of the fourth class, the sum of seven hundred and twenty dollars and interest, for the rental of seven hydrants furnished to the defendant city by plaintiff from the fifteenth day of March, 1896, to the first day of January, 1898, at the rate of four hundred and twenty dollars per annum.
The facts are about as follows:
On the first day of September, 1890, the board of alder
By section ten of said ordinance it is provided that the city of Lebanon would rent of the Light & Water Company, seven fire hydrants for four hundred and twenty dollars yearly rental, to be paid in semiannual installments, on the first day of January and July of each year, deferred payments to bear eight per cent interest from the time they were due until paid.
The Lebanon Light & Water Company accepted the terms of the contract and complied fully with all its terms and conditions. It proceeded to erect and did erect a system of waterworks for the city. It expended large sums of money in mains, hydrants, standpipe, excavation of wells, etc., at an expenditure of some $20,000. It constructed the seven fire hydrants to furnish water to the city for fire purposes, which the city duly accepted and took possession of. The Lebanon Light & Water Company, and the plaintiff as its successor and assignee, continued to furnish the city of Lebanon with water in accordance with its agreement.
While an election was held in pursuance of said ordinance in the defendant city on the sixteenth day of September, 1891, at which said ordinance was submitted for ratification to the qualified voters of said city, and was in fact adopted at said election by a vote of two hundred and sixty four for, to three against, it is claimed by defendant that no ordinance was in fact passed by the city council calling said election.
An ordinance was, in fact, presented to the city council calling an election for the sixteenth of September, 1890, for
The court, a jury being waived, over tbe objection and exception of plaintiff, declared tbe law to be as follows:
“1. The court declares the law to be that the city authorities of the city of Lebanon had no right to contract with plaintiff’s assignor for the purpose of furnishing water for said town, without there first being an ordinance passed by the city council of said city authorizing and directing an election to be held to vote upon such contract; and if it does not appear upon the journal or records of said city that the ordinance was passed by the said city council of said city providing for an election for the purpose of voting upon said, contract, parol testimony can not be introduced to prove the same, and the election held in said city to vote upon the said contract is absolutely void and did not authorize the mating of such contract or the ratification thereof.
“2. Even though the election to ratify the contract between the city of Lebanon and the plaintiff’s assignor for the furnishing of water for the said city was valid, yet if it further appears that the said plaintiff also holds a contract with the said city for the furnishing of lights for said city and that the amount claimed by plaintiff under said contracts for furnishing lights and water for said city for the year 1897 is in excess of the revenue and income of said city for the year 1897; and if, for the year 1897, the authorities of said city have levied a tax to the full amount prescribed by section 2, article 10, of the Constitution, and if it further appears that in the action by the plaintiff against said city for such light, plaintiff has recovered the full amount of the revenues of said city as above set forth for the year 1897, after deducting the necessary current expenses for said city for said year, then they can not re
“3. If it appears from the evidence that the said plaintiff sued the city defendant for furnishing lights to said city for the year 1896, and recovered in said suit the full amount of the revenues of the said city for said year, after deducting necessary current expenses for said city for such year, and if it further appears that for the year 1896 the tax levy in said city was to the full extent authorized by section 2, aforesaid, of the Constitution, then plaintiff can not recover anything in its suit for the water furnished for the year 1896.”
Judgment was then rendered for defendant, from which plaintiff, after unsuccessful motion for a new trial, appeals.
As no declarations of law were ashed by plaintiff the only questions presented by this appeal for consideration are with respect to the declarations of law given by the court of its own motion. By the first of these it was ruled that as it did not appear upon the journal or records of defendant city that the ordinance was passed by the city council of said city providing for an election for the purpose of voting upon said contract, that parol testimony could not be introduced to prove the same, and that the election held in said city to vote upon said contract was absolutely void, and the city authorities without authority to make the contract, or to ratify the same. By section 1601, Eevised Statutes 1889, it is provided that “the board of aldermen shall keep a journal of its proceedings, and- the yeas and nays of the members on any question shall be entered at the desire of any two members.” And under a similar statute it was held in the ease of Stewart v. The City of Clinton, 79 Mo. 603" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/stewart-v-city-of-clinton-8007625?utm_source=webapp" opinion_id="8007625">79 Mo. 603, that parol evidence was not admissible for the purpose of showing the existence of a town ordinance. That the.
The city council of a city of the fourth class is to all intents and purposes a legislative body, and when acting within the limits prescribed by its charter, and the Constitution and laws of the State, its acts are as valid and binding as an act of the Legislature of the State, which is also required by the Constitution to keep a journal (secs. 31, 32, art. 4), and it will hardly be contended by any one that parol evidence would be admissible for the purpose of showing the existence of a bill in that body, of which the journal contained no evidence, especially in the absence of the bill itself, as in this case the ordinance.
The other declarations of law are erroneous for the same reasons that similar declarations were condemned in the case of Lebanon Light & Magnetic Water Company v. City of Lebanon, 163 Mo. 247. But as the conclusion reached renders it impossible for plaintiff to recover, we affirm the judgment.