State ex rel. Miller v. Missouri, Kansas & Texas Railroad

SHERWOOD, J. — These causes were consolidated for trial in the lower court and resulted, in each instance, in a judgment for the collector. They involve the same principle as that determined in the Lamar case, 128 Mo. 188, decided in 1895, afterward recognized as settled in the Aurora case, 129 Mo. 540, and the reopening of its discussion denied, and subsequently the Lamar case came again to this court in 1891, when the court again refused to consider the constitutional question involved in the former appeals. We still adhere to our former rulings in this regard. Six years have elapsed since our first ruling on the point in hand was made; meanwhile, in all probability, large sums have been invested on the faith of those decisions, and that of itself would constitute a strong reason for refusing to allow the question to be reagitated. The objection is made that there was no statutory author [212] ity for taking the vote of the qualified voters of the city of Boonville in 1882; that- the prohibition of section 12, of article 10, of the Constitution, are self-enforcing, but the authority therein to create an indebtedness requires legislative action to carry it into effect, and it is urged that there was no such legislative authority at the time the vote was taken in the city of Boonville upon the contract involved here. Section.952, page 174, of the Revised Statutes of 1879, provides: “The municipal authorities of any city, town or village are hereby authorized to contract with any such corporation for the lighting by gas or supplying with water, the streets, lanes, alleys squares and public places in any such city, town or village. The municipal authorities of any city, town or village, in which any water company shall be organized under this article, may contract with any such company for the purpose of supplying with water the streets, lanes, alleys, squares and public places in any such city, town or village, for any length of time which shall be agreed upon between such city, town or village, and such company, not to exceed twenty years; and the provisions of this section shall apply to all cities, towns and villages in this State, whether organized by special charter or under the general laws of the State, any provisions of any special charter of any city, town or village in the State to the contrary notwithstanding: provided, that contracts entered into under the provisions of this act shall have no legal form until the same shall be submitted to a vote of the qualified voters, at a general or special election of such city, town or village, and shall be ratified by a two-thirds majority of the legal votes polled at said election.” The argument is made that, while this statute provides for a vote, it does not give any of the machinery necessary for holding an election. Where an express power is given, all [213] the power necessary to carry it into'effect is implied. That which is implied is as much a part of the statute as if written therein. The statute provides for an election, and requires a two-thirds majority of the qualified voters to ratify the contract. Such a contract necessarily involves the creation of an indebtedness. The city could not get water without paying for it, and the Legislature could not have intended it to do otherwise. The power being conferred to hold an election and no means provided therefor, carries with it as an inevitable and indubitable incident the usual and customary means to put into effect the power thus conferred. [Ex parte Marmaduke, 91 Mo. loc. cit. 251, 262; 1 Kent Com., 463, 464; State ex rel. v. Perkins, 139 Mo. loc. cit. 118; Sutherland, Stat. Construct., sec. 341; 2 Peach, Pub. Corp., sec. 1314; Grover v. Huckins, 26 Mich. 476; State ex rel. v. Walbridge, 119 Mo. loc. cit. 394.] The city of Poonville, under this view, had authority to employ the usual and necessary means to put in motion the power granted, to-wit, the passage of an ordinance; this was done, and more than a two-thirds majority of the voters voting at the election, assented to the contract of indebtedness provided for in the ordinance. Nothing more was required to make the contract thus entered into a valid and binding one on the city. Therefore, judgment affirmed. Robinson, Marshall, Valliant and Gantt, JJ., concur. Burgess, G. J., and Brace, J., dissent as to the Lamar case; but Brace, J., agrees to the residue of the opinion.