State ex Rel. Kellett
v.
Johnson

Not overruled or negatively treated on appealinfoCoverage
Supreme Court of Missouri, Division OneMay 27, 1932
330 Mo. 452 (Mo. 1932)
330 Mo. 45250 S.W.2d 121

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May 27, 1932.

1. MUNICIPAL CORPORATIONS: Limit of Indebtedness. A city of not more than thirty thousand inhabitants, whose indebtedness does not exceed five per cent of the valuation of the taxable property therein, may, under Section 12a, Article 10, of the Constitution incur an additional indebtedness of not exceeding ten per cent of such valuation for the purpose of acquiring waterworks and an ice plant. [Secs. 12 and 12a, Art. 10, of the Const. of Mo.]

2. ____: ____: Property not Benefited. The fact that a waterworks system authorized by a vote under Section 12a, Article 10, did not extend to every part of the city would not make void a tax levy on lots in the city which were not served by the fire protection of the waterworks.

3. ____: ____: Vote. For a city to acquire waterworks by the vote of the people under Section 12a, Article 10, of the Constitution, requires the assent of two-thirds of the voters voting at the election, not two-thirds of the qualified voters of the city.

Appeal from Oregon Circuit Court. — Hon. E.P. Dorris, Judge.

AFFIRMED.

Barton Moberly for appellant.

Article 10, Section 12a, of the Constitution of the State of Missouri, and the law passed as an enabling act provides: "that any city containing not more than 30,000 with the assent of two-thirds of the voters, may be allowed to become indebted for waterworks and ice plant in a sum not exceeding ten per cent of the assessed valuation of the property of said city." The total assessed valuation of the property in the city of Thayer, Missouri, was $689,585. Under said section the limit of the indebtedness for the purpose mentioned, should have not exceeded $68,958.50. Sheifler v. School Dist., 291 S.W. 136; State ex rel. Chillicothe v. Wilder, 98 S.W. 465, the court holds that a city cannot exceed the constitutional limit for that purpose. Also, see, State ex rel. v. Hackman, 274 Mo. 571, also, 275 Mo. 534, in which this court has repeatedly held, along the same line.

H.D. Green, Jr., for respondent.

(1) The provisions of the Constitution and statutes relating thereto does not mean such proposition must receive a vote of two-thirds of all the legal voters of the city but only two-thirds of those voting at an election. Sec. 12a, Art. 10, Constitution of Missouri; State ex rel. Sikeston v. Thompson, 31 S.W.2d 49; State ex rel. Kansas City v. Orear, 210 S.W. 392; Franklin v. School District, 271 Mo. 585. (2) Since the amendment of Section 12a, Article 10 of the Constitution of Missouri in 1920, the provisions of the Constitution provides that a city with the population of Thayer, Missouri, may become indebted for the purpose of purchasing or constructing waterworks, ice plants, etc., in a larger amount than specified in Sec. 12 of Art. 10, not exceeding an additional ten per cent. (3) Since the construction or purchase of municipal waterworks and ice plant is for a public purpose it is mandatory on a city proceeding under the provisions of the Constitution to levy a tax for the above purposes on all property in said city. Sec. 12a, Art. 10, Constitution of Mo. (4) And because waterworks system is not extended to every part of city would not make the levy of taxes void as to appellant's property. Sec. 12a, Art. 10, Constitution of Mo.; 44 C.J. 1283.


Thayer is a city of the fourth class. It held an election on January 8, 1924, to test the sense of its qualified voters on a proposition to issue bonds to amount of $75,000 for the purpose of acquiring waterworks and an ice plant. It is conceded that when the election was held the city had a population of 1738, more than 450 of which number were qualified voters, that 300 votes were cast in favor of the proposition and 132 against it, and that the city's assessed valuation ascertained by the assessment next before the last assessment for State and county purposes previous to the incurring of this indebtedness was $689,585. This is a suit for taxes duly levied after the proposition was declared carried against certain real estate subject thereto because of such indebtedness, and defendant has appealed from an adverse judgment.

This indebtedness was incurred under Section 7400, Revised Statutes 1929 (Laws 1921, 1st Ex. Sess., p. 118) which enables any city containing not more than 30,000 inhabitants, with the assent of two-thirds of the voters thereof voting at an election to be held for that purpose, "to become indebted in a larger amount than specified in Section 12 of Article 10 of the Constitution of this State, not exceeding an additional ten per centum on the value of the taxable property therein, for the purpose of purchasing or constructing waterworks, ice plants," etc.

Appellant's first contention is that the judgment "was in contravention of Article 10, Section 12a, of the Constitution of the State of Missouri, and in contravention of Article 10, Section 3, of the Constitution of the State of Missouri, as Article 10, Section 12a, provides: `that not more than ten per cent can be voted for waterworks, etc.' It was agreed that the assessed valuation of the property was only $689,585 and that the sum of $75,000 was voted for waterworks and ice plant."

Section 12a, Article 10 of the Constitution (adopted at general election November 2, 1920, Laws 1921, p. 708) is constitutional authority for the enactment of above mentioned Section 7400, and the portion here relevant is as follows: "Any city in this State, containing not more than thirty thousand inhabitants may, with the assent of two-thirds of the voters thereof voting at an election held for that purpose, be allowed to become indebted in a larger amount than specified in Section 12 of Article 10 of the Constitution of this State, not exceeding an additional ten per centum on the value of the taxable property therein, for the purpose of purchasing or constructing waterworks, ice plants," etc. Appellant not only misquotes but entirely misconceives the meaning of the clause referred to in his above contention. In State ex rel. City of Marshall v. Hackman, 274 Mo. 551, 560, 203 S.W. 960, we held that the amount of such bonds may exceed the "additional" per centum (then five per cent) allowed by Section 12a, Article 10, where all indebtedness did not exceed the aggregate of limitations (then ten per cent) fixed in Sections 12 and 12a of Article 10. To the same effect is State ex rel. City of Carthage v. Gordon, 217 Mo. 103, 123, 116 S.W. 1099. Also see State ex rel. City of Carthage v. Hackmann, 287 Mo. 184, 229 S.W. 1078. The additional five (5) per centum allowed by Section 12a of Article 10 was increased to ten (10) per centum in Section 12a of Article 10 adopted in 1920, supra, and it has ever since remained the same. The aggregate of the limitations of indebtedness fixed by Sections 12 and 12a of Article 10 is and was at the time of the city election in question fifteen (15) per centum, and as the record before us does not disclose the existence of any other city indebtedness it is apparent that the $75,000 bond issue does not exceed the constitutional limits.

It is also urged in appellant's behalf that the tax here in question levied against appellant's lot is invalid because prior to the election the mayor and aldermen made public a plan of locating the water mains, fire plugs, etc., which was changed after the election and a result of such change was that appellant's lot and lots owned by other taxpayers were without the benefit of waterworks for fire protection and domestic use.

It does not appear that the making or publication of a plan of installing the waterworks system was legally any part of the election procedure, or that such was done for the purpose of misleading voters, or that the result of the election was affected thereby. The fact that the waterworks system was not extended to every part of the city would not make the tax levy void as to lots not served. In 44 Corpus Juris, page 1283, Section 4308, note 4, it is said: "A water tax is not void because every part of the municipality is not supplied with water." [See, also, Van Giesen v. Bloomfield, 47 N.J.L. 442, 448-9; State, Hoey, Pros., v. Collector of Ocean Township, 39 N.J.L. 75, 78; 6 McQuillin's Municipal Corporations (2 Ed.) p. 321, sec. 2549.]

Counsel for appellant also urge that inasmuch as it was conceded that the city had more than 450 qualified voters and only 300 votes were cast in favor of the proposition, it failed to receive the necessary two-thirds vote. Counsel overlook the language of Section 12a, Article 10, supra, which only requires "the assent of two-thirds (2/3) of the voters thereof voting at an election held for that purpose." The total number of voters who voted at this election was 432. Hence, the voters represented by the 300 votes cast in favor of the proposition constituted more than two-thirds of the voters voting at the election, and the proposition was properly declared carried. [Franklin v. School District, 271 Mo. 585, 593, 197 S.W. 345; State ex rel. Kansas City v. Orear, 277 Mo. 303, 311, 210 S.W. 392; State ex rel. City of Sikeston v. Thompson (Mo. Sup.), 31 S.W.2d 49.]

For the reasons above stated the judgment is affirmed. All concur.