
    Aurora Water Company, Appellant, v. City of Aurora.
    Division Two,
    July 2, 1895.
    1. Constitution: taxation: stare decisis. The construction given to sections 11 and 12 of article 10 of the state constitution in Lamar Water Electric Light Company v. City of Laman-, 128 Mo. 188, as to rates of taxation for certain purposes, approved.
    2. Municipal Corporations: cities, implied powers op. Cities possess many implied powers not enumerated in their grants of powers, which pass as incidents and auxiliaries to those expressly granted.
    ■3. -: cities of fourth class: implied powers: special meetings op council: statute. Under Bevised Statutes, section 1589, empowering cities of the fourth class to pass such ordinances as may be expedient in maintaining the health and welfare of the city, the council of such city may, at a special meeting, pass an ordinance providing for the construction of waterworks for supplying the city with water, upon the approval of the ordinance by the voters of the city, although the statute does not confer power upon cities of the fourth class to call special meetings.
    4. -: cities: passage op ordinances: reading of bills: statute. The provision of section 1597, Bevised Statutes of 1889, that “no ordinance shall be passed except by bill, and no bill shall become an ordinance unless on its final passage a majority of the members elect shall vote therefor * * * and all bills shall be read three times before their final passage,” does not render invalid an ordinance passed without having been read three times, since the statute does not declare an ordinance so passed a nullity.
    5. -: -: -: mayor’s' signature: presumption: minutes, op council meeting. Where an ordinance is signed by the mayor and attested by the clerk, it will be presumed that the mayor’s signature was rightly made, and the minutes need noti affirmatively show the mayor’s presence at the meeting at which the ordinance was passed.
    6. -: -: -•: waterworks: contract: statute. The passage of an ordinance, as required by law, granting to persons the right to construct waterworks for supplying a city with water and setting forth the terms upon which it shall be done, the approval of such ordinance by the voters and its acceptance by the persons proposing to construct the works, constitute a completed contract within the meaning of section 3157, Revised Statutes of 1889, requiring contracts with municipal corporations to be in writing.
    7. -: -: -: -: -: -. The signature of the mayor to the ordinance was a sufficient signing of the contract by the city, as required by section 3157, supra, he being its lawfully authorized agent; and the acceptance of the terms of the contract contained in the ordinance by letter by the person contracting with the eity was all that was necessary to complete the contract.
    8. Contract: terms: signature. 'The terms of a contract need not all be contained in one paper signed by the party to be charged, in order to make it binding. The terms may be set forth in one paper and the signature be found in another, provided the latter paper properly refers to the terms of the former.
    9c Written Contract: subsequent statements op parties. The statements of either party to a legal written contract, properly entered into, made after its execution, can not affect or diminish its obligatory force.
    10. Municipal Corporation: waterworks: ordinance increasing number op hydrants. After a city has contracted for a system of waterworks, an ordinance increasing the number of hydrants originally contracted for need not be submitted to the voters for approval.
    11. -: waterworks, acceptance1 op. A favorable report of a committee appointed by a city council to inspect waterworks and recommend action as to their acceptance, when approved by the board, will constitute a complete acceptance, and the failure to pass an ordinance of acceptance subsequently proposed will not defeat it.
    12. -: -: ratification op committee’s report. Where, after waterworks contracted for by a eity have been completed, the eity council appoints a committee to inspect them and the committee recommends their acceptance, the receiving of water from the works and the payment of an installment due under the contract amounts to a ratification of the report of the committee and an acceptance of the works by the city.
    13. Pleading: petition: defective statement: demurrer. A petition which defectively states a cause of action is good on general demurrer.
    
      Appeal from Lawrence Circuit Court. — Hon. W. M. Robinson, Judge.
    Reversed,
    
      The ordinances called for in the opinion are as follows:
    ORDINANCE NO. 35.
    “Be it ordained by the] board of aldermen of the city of Aurora, as follows:
    “Section 1. That the city of Aurora, in the county of Lawrence and state of Missouri, is hereby authorized to contract with J. Gruiney, his associates and assigns, as hereinafter provided and specified, for the term of twenty years from and after the legal passage of this ordinance, unless sooner purchased, as hereinafter provided by said city in section 10 of this ordinance and contract, the exclusive right and privilege of erecting, constructing, maintaining, and operating waterworks in the city of Aurora, and state of Missouri, for supplying water from Spring river or Honey creek, not polluted by excreta, sewerage, or offensive matter of any kind, for domestic, manufacturing, fire extinguishment and the various other uses of water that may be needed in the city, and to regulate the same, provided that the rate shall not exceed twenty-five cents per thousand gallons to the various consumers; that for the furtherance of said water supply the said J. Gruiney, his associates' and assigns, have the exclusive right to use all or any streets, lanes, alleys, and public places necessary in which to lay and maintain main and private water pipes, street hydrants and all appurtenances necessary to supply water to the various consumers thereof, provided it is made a part of the contract that all excavations in streets, alleys, lanes and public places, shall be made and placed in as good condition as they were before the making of such excavations.
    “Sec. 2. There shall be located at or near the highest point in the city a standpipe, fifteen feet in diameter, by one hundred feet high, for the distribution of water throughout the city, with a storage capacity of not less than one hundred and fifty thousand gallons.
    “Sec. 3. The pumping machinery located at the source of supply shall consist of two first-class Dean, Knowles, Worthington, or any other standard pumps equally as good, and boilers and appurtenances necessary to render the operation complete, and arranged to work separately or combined. The pumping capacity shall not be less than one million gallons per day, and sufficient to supply all the water that may be required for the various uses in the said city, during the continuance of this ordinance. The boiler and pump room shall be a modern structure of brick or stone of ample size for its pumping machinery. The filtering process at the source of supply will be of the latest of modern filtration, which will meet the requirements of the city and the inhabitants thereof.
    “Sec. 4. There shall be not less than five miles of water mains for the distribution of water within the city limits. The diameter of said water mains shall not be less than four inches, and may be as large as ten, or greater, if necessary, inside diameter, and shall be laid two and one half to three feet below the graded streets. The quality of the said main water pipes shall be first quality standard iron water pipes, and tested to three hundred pounds hydrostatic pressure to the square inch. The pipe distribution shall be so provided with gate valves set with iron boxes, and so connected with the mains, that the said distribution pipes may be divided into sections for repairs. The said five miles of mains shall be located upon such streets as the board of aldermen shall direct by resolution.
    
      “Sec. 5. There shall be located on and connected with the main pipe distribution, at such points in said city as the board of aldermen may designate, sixty double tipped, nonfreezing fire hydrants, for fire purposes, provided with two' and one half inch tips for hose connections. The hydrants shall be Chapman, or some other standard hydrants, the hydrants to be kept in repair and supplied with water by the said J. Guiney, his associates and assigns, during the continuance of this ordinance and contract.
    “Sec. 6. Extension of main pipes shall be laid down by a resolution of the board of aldermen, setting forth where the extensions are to be made and giving the number of feet in such extensions, provided that the said city shall include in the resolution or ordinance of extension, at least one fire hydrant for every five hundred feet, or major part thereof, of pipe so ordered laid down, and the payment of the rental for the use thereof for fire purposes, and set forth in section 7 governing additional hydrants, and that there shall be at least one resident consumer who shall not pay less than $6 per annum, for the use of water therefrom, for every one hundred and fifty feet of pipe so ordered laid down, or asked for as a reason for such extension.
    “Sec. 7. The said city of Aurora hereby agrees to and does rent from said J. Guiney, his associates and assigns, sixty fire hydrants for the full term of this ordinance, from and after the completion of the waterworks, as herein set forth, sixty fire hydrants located on -the water main, as herein provided, and the said city of Aurora does'hereby bind itself to pay to the said J. Guiney, his' associates and assigns for the use of said hydrants for the supplying of water for the extinguishing of fires, flushing of gutters, and fire department uses, the sum of $3,600 per annum, for the sixty original hydrants, or $60 each, and all additional hydrants the city may order erected the sum of $45 for each and every additional hydrant so ordered erected, and all hydrant rental shall be paid in semiannual installments, on the first days of January and July of each year during the continuance of this ordinance and contract, and in consideration of the above agreement the said J. Guiney, his associates and assigns, agree and bind themselves to furnish for the use of said city and the inhabitants thereof a constant and uninterrupted supply of water, during the whole term of said ordinance and contract.
    “Sec. 8. Additional hydrants shall be erected on water mains, or extensions to be laid, when so ordered by resolution or ordinance of the board of aldermen of said city, and the additional hydrants when erected shall be kept in repair and supplied with water by the said J. Guiney, his associates and assigns, the same as to the original sixty as aforesaid, the rental of said hydrants to be as provided for in section 7 of this ordinance, and to commence when the said hydrants are ready to supply water and the city clerk notified thereof in writing.
    “Sec. 9. Any money due the said J. Guiney, his associates and assigns, arising out of the provisions of this ordinance and contract shall bear eight per cent annual interest until paid.
    “Sec. 10. Said city shall have the right to purchase the waterworks and all appurtenances connected therewith, at the expiration of ten years from the date of their completion, and at the expiration of each succeeding year thereafter, at their equitable value, and if the said J. Guiney, his associates and assigns, do not agree upon their value, and the terms of sale of said waterworks and appurtenances, it shall be determined and fixed by three disinterested persons, one of whom shall he chosen by said J. Gruiney, his associates and assigns, and one by the said city, and the two chosen to select a third man, and if the three thus selected do not agree upon said value and the terms' of sale, then said value and the terms of sale shall be determined by the judges of the county court of Lawrence county, Missouri. In ease said waterworks property shall be incumbered by mortgage, deed of trust or other incumbrance at the time of such purchase, such incumbrance shall be subject to the right of the city to purchase; as above provided, and upon such purchase and as a part of the price thereof said second party shall assume the payment thereof, provided that in no case shall the city, second party, assume or. become liable for any incumbrance or liability of such waterworks or of the said first party or assigns, in connection therewith, in excess of the value of the waterworks property ascertained as above required, and provided also that the amount of the incumbrance or liability, if any, at the time of such purchase, shall be deducted from the price paid by said city. The city shall not in any case purchase the'waterworks if the incumbrance thereon at the time exceeds the appraised or ascertained value thereof, but the city shall in no event purchase said waterworks without the consent of two thirds of the qualified voters of said city, voting at a special election held for that purpose.
    “Sec. 11, After the completion of the waterworks the fire hydrants shall be under the control, in charge of the city, its mayor, fire marshal, or such officers as the city shall direct, for fire purposes, and the flushing of gutters; provided that in flushing gutters no stream to exceed one inch in diameter shall be used to exceed sixty minutes in one day, and not oftener than three times in one week, and no other person except those under authority of the city shall open or close them, and said city hereby agrees to pass all necessary ordinances for the protection of said hydrants and appurtenances of the waterworks in construction and operation of the same. It is hereby agreed that the said J. Guiney, his associates and assigns, shall have the right to make all needful rules for the protection of said waterworks and their operations, the tapping of mains, the proper size of service pipe, the appliances to be used in and on outside appliances connected with said waterworks for supplying consumers with water and for the shutting off of water for the nonpayment of rent by private consumers, or for waste, or for any wrongful use of the water.
    “Sec. 12. In the event the said J. Guiney, his associates or assigns, shall issue bonds, secured by mortgage or deed of trust upon said waterworks and all the property appertaining thereto, then the money due or to become due the said J. Guiney, his associates and assigns, for hydrant rental as .aforesaid, or as much thereof as may be necessary, shall be set aside by the city treasurer of said city as net earnings of said waterworks, and the said city, by the said city treasurer, hereby agrees to pay the sum so set aside to the holders of the interest coupons of such bonds, at such place as the same may by their terms be made payable, provided the city of Aurora shall in no event be liable for a greater sum than the annual hydrant rental that may be due the said J. Guiney, his associates and assigns.
    “See. 13. The said J. Guiney, his associates and assigns, shall furnish, connect, and operate a telephone or electric apparatus connecting the pump house and fire department building in said city so that a fire alarm may be communicated to the engineer in charge of the works. The said J. Guiney, his associates and assigns, shall furnish two public watering basins, and water for the same shall be supplied free during the continuance of this ordinance, the water to be used at the public hydrants, the said public water basins to be located at such places as may be designated by the mayor and board of aldermen.
    “Sec. 14. This ordinance shall be in force and take effect from and after its passage in a manner provided by law, and the said J. Gruiney, his associates and assigns, shall accept the same in writing in ten days thereafter. The said J, Gruiney, his associates and assigns, shall begin, in good faith, the construction of said waterworks within sixty days after such acceptance, and complete the same, if possible, within nine months, for the uses herein specified, otherwise this contract shall be void; provided, however, that any delay caused or time consumed by injunction, or orders resulting from any court, not resulting from connivance of said J. Gruiney, his associates and assigns, or by any unavoidable accident in procuring the right of way, or by malicious interference, shall not in any manner work a forfeiture hereof, or any part hereof.
    “Sec. 15.. The said J. Gruiney, his associates and assigns, shall have the exclusive right to tap the water mains and to regulate the pumping and service of pumps.
    “ Sec. 16. And it is further provided and ordained the said J. Gruiney, his associates and assigns, may charge and collect a tariff of prices, for and during the term of this ordinance, equal to, but not exceeding, annexed list, as follows:
    Bakeries............ $ 8 00 to $16 00
    Barber shops, 1 ehair 5 00
    Each additional ehair... 3 00
    Bath tubs, private...... Í 00
    Bath tubs, public....... 10 00
    Banks, full front....... 10 00
    Banks, half front...... 5 00
    Butcher shops........ 8 00
    Blacksmith shops, X fire 5 00
    
      Each additional fire.................................. 3 00
    Building purposes, per 1,000 bricks................... 10
    Per perch of stone................................. 05
    Per 1,000 yards of plaster.......................... 30
    Hydrant rental of city officers.......................
    Drug store, full front............................. 10 00
    Dyeing and scouring establishments................ 8 00
    Foundry and machine shops subject to special rates...
    Fountains, not exceeding 6 hours per day for one-eighth inch.orifice ..................................... 10 00
    For three-sixteenths orifice........................ 20 00
    Hotels and boarding houses, per room................ 1 00
    Laundries....................................... 8 00
    Livery horses and washing carriages.................. 2 50
    Each additional stall ............................... 2 00
    Offices........................................... 4 00
    Printing offices, no engine.......................... 10 00 to $15 00
    Photograph galleries............................. 10 00 to $15 00
    Fourth-inch orifice plug for hose.................... 3 00
    Each additional 1,000 feet......................... 2 00
    Four-room residences........................... 6 00
    Each additional room .............................. 1 00
    Saloons............................................ 10 00
    Stable for one horse and right to wash carriage....... 3 00
    Steam engine (subject to spec, rate)............. 2 50
    Store, 25 feet front............................... 8 00
    Urinals............................................ 3 00 to $6 00
    Water closets, public................................ 5 00
    Water closets, private............................... 2 00
    Water haulers, per barrel...........:............. 01
    “Rent for purposes not herein enumerated will be fixed by estimate or meter measurement at a rate fro rata to quantity used not exceeding, in any case, twenty-five cents per one thousand gallons of water, and it is further provided that any party may use a meter for measurement of water consumed, and the party requiring said meter must pay the expense of the same.
    “Sec. 17. After completion of said waterworks the said J. Guiney, his associates' and assigns, shall notify the city clerk in writing that they are ready to make a fire test, and furnish the city with water in accordance with the terms of this contract. Eire pressure shall be sufficient to throw four streams of water eighty feet high simultaneously and continuously for one hour. The standpipe in or near the city limits shall furnish gravity pressure sufficient to discharge water from the pipe fifteen feet above the roof of the Elliott block, at the corner of the square. Then for the full term of this ordinance, except purchased by the city, as provided for in section 10, said J. G-uiney, his associates and assigns, shall continue to furnish, without default, a constant and uninterrupted supply of water, as heretofore set forth; failing so to do, said city may take possession temporarily of said water machinery and appurtenances, and operate the same until assured that the work will be efficiently operated by the said J. G-uiney, his associates and- assigns, and the expense incurred by said city in so operating said works shall be a lien upon the earnings of sáid works until paid, and shall be deducted from any sums due said J. Guiney, his associates and assigns.
    “Sec. 18. The city shall not pay or be liable for any hydrant rental or charge during any time that the waterworks shall, by reason of being out of repairs, or from any other cause, fail to furnish water as required by the provisions of this ordinance and contract, nor for rental on any hydrant while out of condition or use that may be so far out of repair as not to be in condition for use for more than twenty-four hours after said J. Guiney, his associates and assigns, shall have been notified in writing of its condition, and there shall be deducted from the next succeeding payment of hydrant rental thereafter such proportion of total hydrant rental, as the case may be, as the time of such failure may bear to the annual rental contemplated by this ordinance and contract.
    “Sec. 19. That for the purpose of meeting and paying the annual rental to the said J. Guiney, his associates and assigns, by the city of Aurora, as provided in section 7 of this ordinance, there shall be levied and collected annually, during the continuance of this ordinance, a tax not exceeding forty cents on the one hundred dollars valuation on all taxable property in the city sufficient to pay said rental, if necessary. Said tax. shall be levied at the same time and in the same manner as are taxes for general purposes, and when collected the same shall be set apart for the specific purpose of paying said installments of rental as they become due and provided in this ordinance, and shall not be appropriated for any other purpose or purposes.
    “Sec. 20. This ordinance shall be in force and take effect from and after its legal passage by the board of aldermen, its approval by the mayor, attested by the clerk, when ratified by the two thirds vote of the qualified voters of said city, voting at an election held for that purpose, and its acceptance by the said J. Gfuiney, his associates and assigns, as herein provided.”
    ORDINANCE NO. 35b.
    “Whereas, at a meeting of the mayor and board of aldermen of the city of Aurora, Missouri, held on the sixteenth day of February, 1891, J. Gfuiney submitted a proposition to the mayor and board of aldermen, contracting for the exclusive right and privilege of erecting and maintaining a system of waterworks for the term of twenty years, supplying the said city and its inhabitants with water, and, whereas, at a meeting of the mayor and board of aldermen, held thereafter, on the twenty-third day of February, 1891, the said proposition of J. Gfuiney was considered by the mayor and board of aldermen, and passed and adopted, to take effect from and after its passage, and ratification by a two thirds vote of the qualified voters of said city, which said proposition and contract, as passed and adopted, is in words and figues as follows, to wit: [Here follows a copy of Ordinance No. 35]. And, whereas, at a regular meeting of the mayor and board of aider-men, held on the second day of May, 1891, the said proposition, contract and ordinance, was by an ordinance provided to be submitted to the qualified voters of said city, at an election to be held on the twenty-fifth of May, 1891, and; whereas, the ordinance was duly passed, approved, and published in the Aurora Herald, a daily newspaper printed and published in the city of Aurora, for more than twenty days prior to the day of election, as will more fully appear by the copy and affidavit of said publishers on file with the city clerk, and, whereas, said election was duly held, as provided by said ordinance,' as it appears by the returns of the judges and clerks thereof, duly returned and certified as follows: In the First ward the total number of votes cast amounted to three hundred and fifty-four. In favor of ratifying the waterworks contract and levying the tax, as therein provided; yes, three hundred and forty-three. In favor of ratifying the contract and levying the tax thereby provided; no, eleven. In the Second ward the total number of • votes cast amounted to forty-two. In favor of ratifying the waterworks contract and levying the tax thereby provided; yes, thirty-six. In favor of ratifying the waterworks contract and levying the tax thereby provided; no, six. In the Third ward the total number of votes cast amounted to one hundred and seventy-five. In favor of ratifying the waterworks contract and levying the tax thereby provided; yes, one hundred and sixty-nine. In favor of ratifying the waterworks contract and levying the tax thereby provided; no, six. Total vote' cast, five hundred and seventy-one. Total vote in favor of ratifying the waterworks contract and levying the tax thereby provided, five hundred and forty-eight. Against ratifying the waterworks contract and levying the tax thereby provided, twenty-three. Total majority voting, five hundred and twenty-five, which return was duly made to the mayor and city clerk, certified and canvassed and duly returned and certified to the board, as provided by the law and ordinance in such cases. Whereby it appears that at said election, upon a vote by ballot, more than two thirds of the qualified voters of said city of Aurora, voting at said election held for that purpose, and on the twenty-fifth day of May, 1891, within the legal hours and upon legal notice, as provided by law and ordinance, having voted in favor of said contract for waterworks and for the levying of a tax thereby provided, that it appears on the twenty-seventh day-of May, 1891, and within ten days after said election, J. Guiney duly accepted the terms of said contract, by his letter of that date, as provided by section 14 thereof, and the said J. Guiney, being further desirous of carrying out his proposition and contract, heretofore made and ratified, and by virtue of and authority vested in the mayor and board of aldermen, under the provisions of section 1589 of Revised Statutes of 1889. Therefore, be it ordained by the board of aldermen of the city of Aurora, Missouri, as follows:
    “Section 1. That the city of Aurora, in Lawrende county, Missouri, hereby contracts with J. Guiney, his associates and assigns, as hereinafter provided and specified for a term of twenty years, from and after the completion and acceptance of said waterworks by the said city, unless sooner purchased, as hereinafter provided by the said city, in section 30 of this ordinance and contract, the exclusive right and privilege of erecting, constructing and maintaining and operating waterworks in the city of Aurora, state of Missouri, for supplying water from Spring river or Honey creek, not polluted by excreta, sewerage, or offensive matter of any kind, for domestic, manufacturing, fire extinguishing, and the various other uses of water that may be needed in the city, and to regulate the same, provided that the rate thereof shall not exceed twenty-five cents per one thou sand gallons to the various consumers thereof ; that for the furtherance of said water supply the said J. G-uiney, his associates and assigns have the exclusive right and privilege to use any or all streets, lanes, alleys, or public places necessary in which to lay and maintain main and private water pipes, street hydrants, and all appurtenances necessary to supply water to the various consumers thereof, provided it is made a part of his contract that all excavations in streets, lanes, alleys and public places shall be made and refilled as speedily as possible, and that the streets, lanes, alleys, and public places shall be placed in as good condition as they were before the making of such excavations.
    “See., 2. There shall be located at or near the highest point in the city a steel standpipe, fifteen feet in diameter, and one hundred feet high, for the distribution of water throughout the city, with a storage capacity of about one hundred and fifty thousand gallons.
    “Sec. 3. Pumping machinery located at the source of supply shall consist of two first-class Dean, Knowles, Worthington, or any other standard pumps, equally as good, and the boilers and all appurtenances necessary to render their operation complete, and arranged to work separately or combined. The pumping capacity of these pumps shall not be less than one million gallons per day, and sufficient to supply fall the water that may be required for the various uses in said city, during the continuance of this ordinance. The boiler and pump room shall be a modern' structure of brick or stone, of ample size for-its pumping machinery. The filtering process at the source of supply will be the latest of modern filtration, which will meet the requirements of the city and the inhabitants thereof.
    “Sec. 4. There shall be not less than five miles of water mains, for the distribution of water within the city limits. The diameter of the said water mains shall be not less than four inches, and may be as large as ten, or greater, if necessary, inside diameter, and shall be laid two and one half or three feet below the surface of the graded streets. The quality of said water main pipes shall be first quality cast iron standard water pipes and tested to three hundred pounds hydrostatic pressure to the square inch. The pipe distribution shall be so provided with gate valves, set with iron boxes, and so connected with the mains that the said distribution of water may be divided into sections for needed repairs. The said five miles of mains shall be located upon such streets as the board of aldermen may direct by resolution or ordinance.
    “See. 5. There shall be located on and connected with the main pipe distribution, at such points in said city as the board of aldermen may designate, sixty double tipped, nonfreezing fire hydrants, for fire purposes, provided with two and one half inch tips for hose connections. The hydrants shall be Chapman or some other standard hydrants, the hydrants to be kept in repair and supplied with»water by the said J. G-uiney, his associates and assigns, during the continuance of this contract and ordinance.
    “Sec. 6. The extension of main pipes shall be laid down, by a resolution of the board of aldermen, setting forth where the extensions shall be made and giving number of feet in said extensions, provided that the said city shall include in such resolution or ordinance of extension, at least one fire hydrant for every five hundred feet or major part thereof, of pipe so ordered laid down, and the payment of the rental for the use thereof for fire purposes as set forth in section 7, governing additional hydrants, and that there shall be at least one resident consumer who shall pay not less than $6 per annum, for use of water therefrom, for every one hundred and fifty feet of pipe so ordered laid down or asked for as a reason for such extension.
    “Sec. 7. Said city of Aurora hereby agrees to and does rent from said J. Gruiney, his associates and assigns, sixty fire hydrants, for the full term of this ordinance, from and after the completion of the waterworks as herein set forth, sixty fire hydrants located on the mains, as herein provided, and the said city of Aurora does hereby bind itself to pay to said J. Gruiney, his associates and assigns, for the use of said hydrants for the supplying of water for the extinguishing of fires, flushing of gutters, and fire department uses, the sum of $3,600 per annum for the sixty original hydrants, or $60 each, and all additional hydrants the city may order erected, the sum of $45, for each and every additional hydrant so ordered erected, and all hydrant rentals shall be paid in semiannual in stall - ments, on the first days of January and July of each year, during the continuance of this ordinance and contract, and in consideration of the above agreement the said J. Gruiney, his associates and assigns, agree and bind themselves to furnish for the use of said city and the inhabitants thereof, a constant and uninterrupted supply of water, during the whole term of said ordinance and contract.
    “See. 8. Additional hydrants shall be erected on the water mains, or extensions, to be made when so ordered by resolution or ordinance of the board of aider-men of said city, and the additional hydrants, when erected, shall he kept in repair and supplied with water by the said J. Guiney, his associates and assigns, the same as the original hydrants as aforesaid, the rental to be as provided for in section 7 of this ordinance, and to commence when said hydrants are ready to supply water and the city clerk notified thereof in writing.
    “Sec. 9. Any money due the said J. Guiney, his associates and assigns, arising out of the provision of this ordinance and contract, shall bear eight per cent annual interest until paid.
    “Sec. 10. The said city shall have the right to purchase the said waterworks and all appurtenances connected therewith, at the expiration of ten years from the date of their completion, and at the expiration of each succeeding year thereafter, at their equitable value, and if the said J. Guiney, his associates and assigns, do not agree upon the value and terms of sale of said waterworks and appurtenances, it shall be determined and fixed by three disinterested persons, one of whom shall be chosen by the said J. Guiney, his associates and assigns, one by the said city, and the two chosen to select the third man, and if the three thus selected do not agree upon the value and the terms of sale, the said value and terms of sale shall be fixed and determined by the county judges of the county court of Lawrence county, Missouri. In case the said waterworks property shall be incumbered by mortgage, deed of trust or other liens or incumbrance at' the time of such sale, such incumbrance shall be subject to the right of the city to purchase as provided above, and upon such purchase, and as a part of the consideration and price thereof, said second party shall assume the payment thereof, provided that in no case shall the city, second party, assume or become liable for any incumbrance or liability of such waterworks, or of said first party or assigns, in connection therewith, in excess of the value of waterworks property ascertained as above required, and provided, also, that the amount of incumbrance or liability, if any, at the time of such purchase shall be deducted from the price to be paid by the said city. And the city shall not in any case purchase the waterworks if the incumbrance thereon at the time exceeds the appraised or ascertained value thereof, but the city shall in no event purchase the waterworks without the consent of two thirds of the qualified voters of the city, voting at a special election held for that purpose.
    £ £Sec. 11. After the completion of the waterworks, the fire hydrants shall be under the control, in charge of the city, its mayor, fire marshal, or such officers as the city may direct, for fire purposes and the flushing of gutters; provided that in flushing gutters no stream exceeding one inch in diameter shall be used to exceed sixty minutes in one day, and not oftener than three times in one week, and no other person except those under authority of the city, shall open or close them; the said city hereby agrees to pass all necessary ordinances for the protection of said hydrants and appurtenances of the waterworks in construction and operation of the same. It is hereby granted the said J. G-uiney, his associates and assigns, the right to make all needful rules for the protection of said waterworks, and their operation, the tapping of mains, the proper size of service pipe, and appliances to be used in and on all outside appliances, connected with said waterworks for supplying consumers with water, for the shutting off óf water for the nonpayment of rent by the private consumers, or for waste or for any wrongful use of water.
    “Sec. 12. In event the said J. G-uiney, his associates and assigns, shall issue bonds secured by mortgage or deed of trust on all the property appertaining thereto, then the money due or to become due the said J. Gruiney, his associates and assigns, for hydrant rental as aforesaid, or as much thereof as may be necessary, shall be set aside by the city treasurer of said city, as net earnings of said waterworks, and the said city, by the said treasurer, hereby agrees to pay the sum so set aside, to the holders of the interest coupons of such bonds, at such place as the same may be, by their terms, made payable, provided that the city of Aurora shall in no event be liable for a greater sum than the annual hydrant rental that may be due the said J. Gruiney, his associates or assigns.
    “Sec. 13. The said J. Gruiney, his associates and assigns, shall furnish, connect, and maintain a telephone or electric apparatus connecting the pump house and fire department building in said city, so that a fire alarm may be communicated to the engineer in charge of the works. The said J. Gruiney, his associates and assigns, shall furnish two public watering basins, and water for the same shall be supplied free, during the continuance of this ordinance and contract; the water to be used at the public hydrants, the said public watering basins to be located as designated by the mayor and board of aldermen.
    “Sec. 14. This ordinance shall be in force and take effect from and after its legal passage, in the manner provided by law. The said J. Gruiney, his associates or assigns, shall begin in good faith the construction of said waterworks, within sixty days of date of acceptance, and shall complete the same, if possible, within nine months, ready to begin the supply of water, for the use herein provided, otherwise this contract is to be void, provided, however, that any delay caused' or time consumed by injunction, or order of any court not resulting from connivance from J. Gruiney, his associates and assigns, or by any unavoidable accident in procuring right of way, or by malicious interference, shall not in any manner work a forfeiture hereof, or any part hereof.
    “Sec. 15. Said J. Gruiney, his associates and assigns, shall have the exclusive right to tap the water mains and to regulate the pumping and service pipes.
    “Sec. 16. And it is further provided and ordained that the said J. Guiney, his associates and assigns, for and during the term of this ordinance, may charge and collect a tariff of prices .equal to but not exceeding the annexed list, as follows:
    Bakeries........................................... $ 8 00 to $16 00
    Barber shops, first chair........................... 5 00
    Each additional chair.............................. 3 00
    Bath tubs, private................................. 2 00
    Bath tubs, public................................. 10 00 to $15 00
    Bank, full front................................ 10 00
    Banks, half front................................. 5 00
    Butcher shops.................................... 8 00 to $16 00
    Blacksmith shops, one fire............................ 5 00
    Each additional fire................................ 3 00
    Building purposes, per 1,000 bricks............... 10
    Building purposes, per perch of stone................ 05
    Building purposes, per 100 yds. plastering............ 30
    City officers, including hydrant rental.
    Fountains, not exceeding six hours a day, per season for one-eighth inch orifice..................... 12 00
    Fountains as above, three-sixteenths orifice........... 20 00
    Drug store, full front....................... 10 00
    Dyeing and scouring establishments... .'............. 8 00 to $15 00
    Foundries and machine shops special rates.
    Hotels and boarding houses, per room................ 1 00
    Laundries........................................ 8 00 to $20 00
    Livery horses and all of a similar kind, including washing of carriage ............................... 2 50
    Each additional stall.............................. 2 00
    Offices .......................................... 4 00 to $ 6 00
    Photograph gallery............................... 10 00 to $15 00
    
    Printing office, no engine......................... 5 00 to $10 00
    Plug for quarter-inch orifice used not to exceed three hours per day, 1,000 square feet or less........... 3 00
    Each additional 1,000 square feet.......'............. 2 00
    
      Besidence for each family including all household purposes, four rooms or less.........................6 00
    Bach additional room............................... 1 00
    Saloons.......................................... 10 00 to $20 00
    Stable for one horse, including washing carriage....... 3 00
    Bach additional horse.......................... 1 00
    Steam engine, per horse power, twelve hours per day, although subject to special rating.............. 2 50
    Store, twenty-five feet front .................. 8 00
    Urinals, one thirty-second inch orifice, private jet..... 3 00
    Urinals, fixed jets, one-sixteenth inch orifice ....... 6 00
    Water closets, public.............................. 5 00
    Water closets, private ........................... 2 00
    Water haulers, per barrel.......................... 01
    “Rents for purposes not herein enumerated will be fixed by estimate or meter measurement rate at a fro rata to quantity used, not exceeding in any instance twenty-five cents per one thousand gallons of water, and it is further provided that any party may use a meter for measurement of water consumed. The party requiring said meter must pay the expense of same.
    “Sec. 17. After the completion of said waterworks the said J. Guiney, his associates and assigns, shall notify the city clerk in writing that they are ready to make a fire test, and furnish the city with water in accordance with the terms of this contract. Eire pressure shall be sufficient to throw four streams of water eighty feet high simultaneously and continuously for one hour. The standpipe within or near the city limits shall supply .gravity pressure sufficient to discharge water from two pipes fifteen feet above the roof of the Elliot block at the corner of the square, and for the full term of this ordinance, except purchased as provided for in section 10 of this ordinance and contract, said J. Guiney, his associates and assigns, shall continue to furnish without default, a constant and uninterrupted supply of water, as heretofore set forth. Failing so to do said city may take possession temporarily of said water machinery and appurtenances and operate the same until assured that the same will be efficiently operated by the said J. G-uiney, his associates and assigns, and the expense incurred by said city in so operating said works shall be a lien upon the earnings of said works until paid, and shall be deducted from any sum due J. G-uiney, his associates and assigns.
    “Sec. 18. They shall not pay or be liable for any hydrant rental or charge during any time that the waterworks shall, by reason of being out of repair, or from any other cause, fail to furnish water as required by the provisions of this ordinance and contract, nor for rental upon any hydrant while out of condition or use that may be so far out of repair as not to be in a condition for use more than twenty-four hours after said J. G-uiney, his associates and assigns, shall have been notified in writing of its condition, and there shall be deducted from the next succeeding payment of hydrant rental thereafter such proportions of the total rent for hydrant rental, as the case may be, as the time of failure may bear to the annual hydrant rental, contemplated by this ordinance and contract.
    “Sec. 19. That for the purpose of meeting and paying the annual rental to the said J. G-uiney, his associates and assigns, by the city of Aurora, as provided in section 7 of this ordinance, there shall be levied and collected annually, during the continuance of this ordinance, a tax not exceeding forty cents on the one hundred dollars valuation on all taxable property in the city, sufficient to.pay said rental, if necessary. Said tax shall be levied at the same time and in the same manner as are taxes for general purposes, and when collected the same shall be set apart for the specific purpose of paying said installments of rental as they become due and provided in this ordinance, and shall not be appropriated for any other purpose or purposes.
    “Sec. 20. This ordinance shall be in force and take effect from and after its legal passage.”
    ordinance no. 48.
    “Section 1. That the said J. G-uiney, his associates and assigns, are hereby authorized to lay water mains from Rinker avenue to Elton avenue, on Church street, and to erect a fire hydrant on the southeast corner of Church street and Park avenue, and a fire hydrant on the southeast corner of Church street and Rock avenue; also to extend the water mains along Elton avenue, from South street to St. Louis street; also to erect a fire hydrant on the northwest corner of Elton avenue and Anderson street.
    “Sec. 2. The hydrant 'rental for the additional hydrants shall be $45 each per annum, and shall be paid in the same manner as the original sixty hydrants on January 1st and July 1st of each year, during the full term of this contract, twenty years, as provided in section 7 of ordinance number 356.
    “Sec. 3. The hydrant rental of the aforesaid shall commence when the city clerk is notified in writing that the said hydrants are erected and fully prepared to furnish the city with water; and the extension to be made, in accordance with the ordinance, is to be about two thousand, four hundred and fifty feet.
    “Sec. 4. This ordinance shall take effect and be in full force from and after its legal passage.”
    The mayor’s veto, referred to in the opinion, is as follows:
    
      “To the Honorable Board of Aldermen of the City of Aurora:
    
    ‘ ‘ Gentlemen : —I herewith return'a document acted upon by your honorable body at your last meeting, with my objections thereto. This document is as follows: ‘Ordinance of acceptance, Aurora, Mo., April 18,1892. G-entlemen: In accordance with the terms and conditions of waterworks ordinance and contract, being an ordinance entitled “An ordinance providing for the erection, construction and maintenance of a system of waterworks in the city of Aurora, Mo.,” and contracting with J. Gruiney, his associates and assigns, after the completion and acceptance of said water works' system, of twenty years, upon the terms and conditions as provided in ordinance number 35, passed February 23, 1891; number 35&, passed June 9, 1891, and number 48, passed June 6,1891. These ordinances provide for sixty fire hydrants at $60 per annum, and three additional hydrants at $45 per annum; total hydrant rental per year, $3,735. The terms, provisions and tests required in said ordinance have been fully complied with, and the ordinances are in full force and effect. The hydrant rental shall commence on the eleventh day of April, 1892, and continue for a term of twenty years. Acceptance approved by order of the board of aldermen, this eighteenth day of April, 1892. Attest: H. R. Hamilton, clerk.’ This document was prepared, typewritten and submitted by the Aurora Water Company, and was intended by that company as an ordinance of acceptance of the waterworks by this city, and as a contract for the payment of water rent. I do not consider this document either an ordinance, resolution or contract; but having been acted upon by this board; I feel obliged to return it, with my ■reason for not signing it. This document is merely a letter from the city authorities to the water company, approving the acceptance of the waterworks, stating that the waterworks ordinances have been complied with, and dating the beginning of the water rent at April 11, 1892. There has been no formal acceptance of the waterworks by this board, or any action looking to that end, except this letter, which is certainly no acceptance, either by ordinance or resolution. In the first place, the waterworks ordinance nowhere provides for an acceptance of the works by the city. Section 17 of ordinance 35 is as follows: ‘After the completion of said waterworks the said J. G-uiney,. his associates and assigns, shall notify the city clerk in writing that they are ready to make a fire test and provide the city with water, in accordance with the terms of this contract.’ Then, for the full term of this ordinance, unless purchased by the city, as provided for in section 10, said J. Gruiney, his associates and assigns, shall continue a constant and uninterrupted supply of water, as heretofore set forth. I am informed that the standpipe has never been accepted by J. Gruiney, nor by the Aurora Water Company, because of the imperfect character of its construction, its leakage, etc.; therefore the waterworks are not completed. This city has no official knowledge of the assignment by J. Gruiney of his interest in the waterworks to any other party. , Section 1 of ordinance number 35 provides that the city of Aurora may contract with J. Gruiney, his associates and assigns, for supplying this city with water from Spring river or Honey creek, not polluted with excreta, sewerage or other offensive matter of any kind, for domestic and other uses. There have as yet been no tests made to prove that the water furnished by the waterworks is fit for domestic purposes. It is an undeniable fact that almost the entire drainage from the town of Verona,with its population of six hundred or more inhabitants, together with the drainage from the stock pens and from the distillery, where one hundred or more hogs are constantly fed, runs into Spring river a short distance above where the waterworks gets the supply of water for this city, and that every shower sweeps a* large amount of excreta, sewerage and offensive matter of every kind into said river, thereby polluting its water and rendering it totally unfit for drainage, drinking or culinary purposes. For the city authorities to accept this water for the use of our, people without the more thorough test of its purity, both at this time and when the low water in the stream and hot weather combine to render it still more impure, would be a crime against the community, and might result in the decimation of our families by typhoid or other fever. Our citizens have the right to believe that our officials have performed their full duty, and would not accept this water until satisfied that it had been tested, and had proved pure and wholesome. I am not informed that such tests have been made; and, until this water has been declared fit for public and domestic uses by competent authority, I can not think that the requirements of the ordinances have been complied with, and shall withhold my approval of any acceptance of the waterworks. By document herewith returned, April 11,1892, is fixed as date of commencement of rent for the fire hydrants, and it purports to agree to pay said rent for the full and definite period of twenty years. The tests for fire purposes were not satisfactory until April 16, and this would pay the water company some $70 for a time when, in my opinion, they had no claim on the city for pay. Moreover, the city, by the terms of these ordinances, has the right to purchase the waterworks at the end of ten years; and this letter, if held to be an ordinance, as held by the water company, might be held to repeal the city’s right to purchase. For these reasons, if for no others, I should decline to approve the letter, if held to be an ordinance, as held by the water company, or whatever it might be called. Believing, as I do, that the ordinances providing for the waterworks have not' .been complied with in these, as in other particulars, and that the health of our people would be placed in jeopardy by any act of the board accepting the waterworks without thorough tests, which act would be equivalent to an indorsement by the city authorities of the purity of the water, 1 am constrained to return this communication with these objections.”
    
      Carr McNatt for appellant.
    (1) The city of Aurora had the legal right to make the contract sued on in this action within the constitutional limit. R. S. 1889, sec. 1589. And such contract was legally made in pursuance of the authority given respondent by virtue of its charter and ordinance and proceedings thereunder. Rutherford v. Hamilton, 97 Mo. 543; Ins. Co. v. Holmes’ Adm’r, 68 Mo. 601; State ex rel. v. Smith, 22 Minn. 218; State v. Vail, 53 Iowa, 550; Ins. Co. v. Sortwell, 8 Allen, 217; Granger v. Mill Co., 59 Cal. 678; Woolfolkv. Randolph Co., 83 Mo. 505; Lamar Water Co. v. City of Lamar, 26 S. "W. Rep. 1027; Railroad Co. v. Springfield, 85 Mo. 674; Vincennes v. Gaslight Co., 31 N. E. Rep. 573. (2) The contract of the city of Aurora to pay a hydrant rental of $3,600 per year for twenty years, for water to be furnished by respondent, is not a debt within the meaning of section 12, article 10, Constitution of Missouri. Nor under any reasonable definition of the word “debt.” No obligation arises to pay, and consequently no debt is incurred until the water is furnished. Lay cock v. City, 35 La. 497; Corpus Ghristi v. Woessner, 58 Tes. 468; Smith v. Dedham, 144 Mass. 179; Wentioorth v. Whitman, 1 Mass. 471; Ward v. Partridge, 11 Mass. 488; Weston v. Syracuse, 17 N. Y. 112; Garrison v. Howe, 17 N. Y. 465; Dively v. Cedar Falls, 21 Iowa, 233; Grant v. Davenport, 36 Iowa, 396; Ter. v, Oklahoma, 37 Pac. Eep. 1094; State v. McCauley, 15 Cal. 454; Hast St. L. v. Go., 98 111. 429; Co. v. Carlyle, 31 111. App. 339; same case, 140 111. 453 •, Bailway v. Jacksonville, 114 111. 567. This is the construction put upon that section of the constitution of Iowa, from which section 12, article 10, of our constitution was taken (see Poore, Charters and Constitution, 549), and had been so construed by the courts of last resort- of that state in the cases of Lively v. Cedar Falls and Grant v. Davenport, supra, before our adoption of it, and by every rule of law our courts are bound by their construction. Cooley’s Const. Lim. [4 Ed.], 64, note 2; Skoutenv. Wood, 57 Mo. 380, 382; Skrainka v. Allen, 76 Mo. 385; Valparaiso v. Gardner, 97Ind.' 1; Attorney v. JBrunst, 3 Wis. 790; Law v. Blanchard, 126 Mass. 273; Com. v. Hartnet, 1 Gray, 450; Dillon, Mun. Corp. [4 Ed.], sec. 136 a, pp. 2*05, 206; State exrel. v. Macon Co. Ct., 41 Mo. 458. (3) Section 19 of the ordinance and contract does not conflict with section 11, article 10, of constitution. The forty cent levy therein referred to can be construed to mean forty cents out of the legal fifty cent levy, and it is a settled rule that where the terms of a contract will admit of two meanings, or “two ways of effecting the object, by one of which it would be unlawful and the other lawful, the latter construction must be adopted. Bishop on Contracts [Enl. Ed.], sec. 392; 19 Am. and Eng. Encyclopedia of Law, p. 50; Merrill v. Melchoir, 30 Miss. 516; Crittenden v. French, 21 111. 598; Ornes v. Douchy, 82 N. Y. 443; Sheffield v. Balmer, 52 Mo. 474; Lowery v. Bainwater, 3 Mo. App. 562; State ex rel. v. Finn, 8 Mo. App. 350; 2 Parsons on Contracts, 497, 500, 505; Curtis v. Gokey, 68 N. Y. 304; Hobbs v. McLean, 117 U. S. 567; Archabold v. Thomas, 3 Cow. 284. (4) The contract to pay a hydrant rental of $3,600 a year and the additional hydrants $135 a year, did not create an indebtedness in excess of the income and revenue provided for such years, within the meaning of section 12, article 10, constitution of Missouri. The board of aldermen had a right to anticipate the revenue and income to be collected. Shiedlyv. Lynch, 95 Mo. 487; Lewis v. Denver Water Go., 38 C. L. J. 178; Weston v. Syracuse, 17 N. Y. 112; Booh v. Earl, 87 Mo. 252. Respondents’ own record put in evidence shows that the income and revenue provided for 1891, 1892 and 1893 ranged from $12,000 to $17,000 or far more than was necessary to pay for hydrant rental contracted for. (5) The words income and revenue used in section 12, article 10, of the constitution of Missouri are not confined to the narrow meaning of only the current taxes, but include all the moneys that come into the treasury, whether from taxes, fines, penalties, licenses or forfeitures. And licenses from saloons,-, draymen, and occupation taxes may be as well anticipated as taxes on personal property which can be easily removed from the situs of the city. Sec. 12, art. 10, const; Lamar Water Go. v. City of Lamar, 26 S.W. Rep. 1025. (6) If section 19 of the ordinance and contract is held to come within the constitutional inhibition of section 11, article 10, constitution, then it should be stricken out as surplusage, and the legal contract enforced — plainly it is not a dependent clause, the contract being perfect without it. It only provides a ‘ 'manner” of payment of an obligation, which could be paid in any other manner as well. Hitchcoch v. Galveston, 96 U. S. 344; Daniels v. Tearney, 102 U. S. 415; Field on Corporations, sec. 273; 2 Parsons on Contracts, 800; Bishop on Contracts, 392. (a) Contracts, statutes, and ordinances, may be valid in part and void as to other portions, and when such is found to be the case the parts should be separated; the void stricken out and the valid enforced unless the valid parts are so dependent upon the void as to make the one essential to the existence of the other. Bishop on Contracts, sec. 392; Cooley’s Const. Lim. [4 Ed.] 215; Dillon, Mun. Corp.- [4Ed.], sec. 421; Statev. Clark, 54 Mo. 36; City of St. L. v. Railroad, 89 Mo. 44; City of St. L. v. Railroad, 14 Mo. App. 221; McPherson v. Foster, 43 Iowa, 72; Packet Co. v. Keokuk, 95 U. S. 80; Daviess Co. v. Dickinson, 117 U. S. 657; Stockdale v. School Dist., 47 Mich.. 227; Fnsworthv. Curd, 68 Mo. 282; Columbus Water Co. v. Columbus, 48 Kan. 99, 378. (7) The fact that the respondent consumed all of its income in permanent improvements, grading and macadamizing its streets, and buying fire equipments, is no defense to this action and no reason why appellant should not have judgment lor its debt. City v. U. S. ex rel. Stewart, 2 Dist. U. S. Court of Appeals,vol. 1, p. 148; 8 Am. and Eng. Encyclopedia of Law, p.1272; Davenport Gas Co. v. Davenport, 13 Iowa, 229; Mutual Gas Co. v. New York, 49 How. 227. (8) The documentary and record evidence read in evidence by the respondent was inadmissible for any purpose. It was in no way material to the issues, was entirely irrelevant, and much of it incompetent. It tended only to prove a state of admitted facts, i. e., that the city administration were either incompetent or dishonest, in that they had ruthlessly squandered the revenues of the city since the contract with appellant had been consummated. Also, to vaunt the wonderful veto propensities of an egotistical mayor, and to uselessly incumber the record with forty pages of printed matter, the admission of which is reversible error. Weil v. Poston, 77 Mo. 284; State v. Cox, 67 Mo. 392; State v. Daubert, 42 Mo. 242; Cobb v. Adams Sand Co., 12 Mo. App. 130; Railroad v. Wins-low, 66 111. 219; Ins. Co. v. Rubin, 79 111. 402; Perry v. Ford, 17 Mo. App. 212.
    
      
      N. Gibbs, Frederick King, and H. F. Bagsdale for respondent.
    (1) Plaintiff’s petition does not state facts sufficient to constitute a cause 'of action, and would not support a judgment; and no evidence should have been admitted, and none should be considered, in support thereof. Said petition does not set out any ordinance nor any authority by statute or ordinance, in the city, to make the contract, create the indebtedness, or levy the tax. Dillon on Mun. Corp., secs. 88, 413; Maxwell on Code Pleading [Ed. 1892], p. 89. A city ordinance will not be judicially noticed, and it has been held that when it becomes necessary to plead a city ordinance, a mere reference to it by number, title, and date of enactment is not sufficient, and that it must be set forth in the pleading as any other fact of which the court takes no judicial notice. Boone on Code Pleading, sec. 29. Pleading private statute. R. S. 1889, secs. 2077, 2078; Bliss on Code Pleading, p. 304. Where a right of action is founded on a city ordinance it should be pleaded. Givens v. Van Studdiford, 86 Mo. 149; State ex rel.v. Sherman, 42 Mo. 210 (214). Mooney v. Kennett, 19 Mo. 551; Cape Girardeau v. Fougou, 30 Mo. App. 551. Was the city empowered under the constitution and laws of the state, to enter into such a contract as set out in the petition % It would devolve on plaintiff to prove power, etc., to make such a contract and such proof would require corresponding allegations in the petition. Texas Water & Gas Co. v. Cleburne, 21 S. W. Rep. 393. (2) A city can do only those things that its charter, or the general statutes, expressly authorizes it to do; and it can do those things only in the exact manner prescribed. A city has only a limited and delegated authority. It has no sovereign or original power. Cities are creatures of statute only. Dillon, Mun. Corp. [4 Ed.], secs. 21, 37, 89; Btigglesv. Collier, 43 Mo. 375; Stwgeonv. Hampton, 88 Mo. 203. (3) The meeting of the board of aldermen on February 23, 1891, not a legal meeting, for that it was not a - regular meeting. Nowhere in the statutesis there any authority given for special meetings of the board in cities of the fourth class. (4) Ordinance number 35 was illegal— for that: First, it was passed at an unauthorized meeting of the board; second, it was not read three times and the record so affirmatively shows; third, no contract in. writing was ever signed by the parties, as required by section 3157, Revised Statutes, 1889; fourth, no contract in writing was ever signed in duplicate, as required by section 3158, Revised Statutes, 1889. Ordinance number 35, not legally passed, because not read three times as required by section 1597 (Revised Statutes, 1889). This section is mandatory. Dill, on Mun. Corp. [4 Ed.], sec. 291, n. 1, 4; St. Louis v. Tel. Co., 96 Mo. 623; Heidelberg v. St. Francois Co., 100 Mo. 69; Fdina v. Brown, 19 Mo. 672; In re Smith, 52 N. Y. 526; Danville v. Shelton, 76 Ya. 325. One contracting with a city through its officers is bound to take notice at his peril of.their powers, and also of the legality of its ordinances. Keating v. City of Kansas, 84 Mo. 415; Barnard v. Knox Co., 105 Mo. 382; Booh v. Farl, 87 Mo. 246; Sturgeon v. Hampton, 88 Mo. 203; Saline Co. v. Wilson, 61 Mo. 237; Bloomfield v. Banh, 121 U. S. 121. Nor is the county estopped from disputing the validity of these acts. These quasi corporations are not estopped by the illegal and void acts of their limited statutory agents. Sturgeon v. Hampton, 88 Mo. 203. Yóid acts of can not be ratified. Heidelberg v. St. Francois Co., 100 Mo. 69. (5) Section 3157, Revised Statutes of 1889, is applicable to all municipal contracts and is mandatory. There was no contract. (6) Sections 1589 and 3157 of Revised Statutes of 1889 are in harmony and must be construed together. Appellant contends that section 1589, being the later expression of legislative will, must control. We think not. Section 1589 confers power on the city to contract for water, but specifies no mode of making such contract. Section 3157 provides specifically how all city contracts shall be made. The one grants the authority; the other points out the exact manner of exercising that authority, which provision was to safeguard the county ior city from “extravagant demands and to restrain officials from heedless and ill-considered engagements,” as said this court in Woolfolh v. Randolph Go. 84 Mo. 506. When the mode of contracting is specially and plainly prescribed and limited, that mode is exclusive. Dillon on Mun. Corp. 449. (7) This case is unlike Saleno v. Neosho, 27 Mo. 627. The constitutional questions that are expressly raised by the pleading in this case, were not directly involved in that case. (8) Ordinance 35 is in violation of section 12, article 10 of the constitution, and is void. Lamar JE. L. é W. Co. v. City of Lamar, 26 S. W. Rep. 1030; State ex ret. v. Columbia, 111 Mo. 365; Blach v. McGonigle, 103 Mo. 192. (9) Ordinance 35 is in conflict with section 11, of article 10, of the constitution, and is void. Spilman v. Parkersburg, 14 S. W. Rep. 279; Barnardv. Knox Co., 105 Mo. 386. (10) There is no presumption in favor of the validity of a meeting of a board of aldermen in cities of the fourth class or of any ordinance passed by such board. Dillon, Mun. Corp., sec. 423; Schooti v. The People, 89 111. 195; (11) Upon the whole record, the judgment was for the right party and should be affirmed. Fitzgerald v.Bather, 96 Mo. 661; Arnold v. Jeivett, 28 S. W. Rep. 614; Greer v. Bank, 128 Mo. 559; Fox v. Wincles, 127 Mo. 502.
   Sherwood, J.

Action by plaintiff to recover of defendant city, a city of the fourth class, hydrant rentals amounting in the aggregate to $3,809.90. Plaintiff’s claim is that this amount was earned in consequence and by the performance of a contract made between plaintiff and defendant consisting of certain ordinances passed by defendant, adopted by a nearly unanimous vote of the taxpayers and accepted by plaintiff or its assignor.

Defendant denied the validity of the contract on constitutional and other grounds, and plaintiff replied. Copies of the ordinances involved will accompany this opinion.

Defendant paid the first installment of rentals for July, 1892, but after the ruling announced in the Columbia case, refused to make any more payments. Inasmuch as the constitutional questions put in issue by the pleadings herein have been in the second opinion delivered in Lamar Water, etc., Co. v. City of Lamar, 128 Mo. 188, determined against defendant’s contention by court in banc, it will not be necessary to discuss them; we proceed, therefore, to the consideration of such questions which the record contains as are open to review.

I. a. And first as to the passage on February 23, 1891, of ordinance 35, which ordinance constitutes the groundwork of plaintiff’s demand. Various objections are urged against the validity of this ordinance. It is insisted that it is invalid because passed at an unauthorized meeting of the board, in that it was not a regular meeting, and that the statutes, while giving to cities of the first, second, and possibly the third, class power to call special meetings, yet that no such power is conferred by statute on cities of the fourth class. It may be granted that no such power is expressly conferred, yet it does not thence follow that such power is nonexistent. Of necessity, cities possess many powers which are not enumerated in the grant of power, and yet pass as the mere incidents and auxiliaries of those expressly granted.

Cities of the fourth class, to which defendant city belongs, have conferred upon them a great variety of powers by section 1589, Revised Statutes, 1889, among them the power “ * * * to pass such other ordinances for the regulation and police of said city, and commons thereto appertaining, as they shall deem necessary; and to pass such ordinances, not inconsistent with this article, as may be expedient in maintaining the peace and good government, health and welfare of the city* its trade, commerce and manufactories.”

As instances of such implied powers are those when a power to pass ordinances gives to the corporation, without any express grant of power, the incidental right to enforce them by reasonable pecuniary penalties. In England, as it is regarded as the duty and purpose of corporations to preserve the health and safety of the inhabitants of cities, it has always been held that reasonable regulations in regard to such object fell within the incidental authority of corporations to ordain.

Under power conferred to pass ordinances to promote the general welfare and preserve the peace, a city may fix by ordinance the time or places of holding public markets, and make such other regulations concerning them as may conduce to the public interest.

Under a general welfare clause in relation to the maintenance of the good order of the city, it has been ruled that a city may “establish all suitable ordinances for administering the government of the city, the preservation of the health of the inhabitants, and the convenient transaction of business within its limits, and for the performance of the general duties required by law of municipal corporations.”

Under a general power to pass “any other by-laws for the well-being of the city,” such corporation may pass an ordinance prohibiting saloons, .etc., to be kept open after 10 o’clock at night. 1 Dillon, Municipal Corporations [4 Ed.], secs. 338, 369, 384, 393, 396, 400, and cases cited.

These authorities proceed on the evident theory of the familiar maxim that a grant of power takes with it all the necessary incidents to make that grant effectual. State ex rel. v. Walbridge, 119 Mo. 383, 24 S. W. Rep. loc. cit. 460, and cases cited.

And, as before stated, there are many implied powers which attach themselves to municipal corporations, inherent powers, which belong to them because they are municipal corporations, just as certain powers are inherent in courts because of the very nature and attributes of their organization. Thus, at common law, it is an established principle in England, that a municipal corporation may, by virtue of its inherent or incidental power, pass a by-law imposing a pecuniary penalty upon such as refuse without legal excuse an office to which they have been duly elected. And the eminent jurist and author heretofore cited indicates that even in this country, under the usual general welfare clause or under their incidental powers, municipal corporations could, by ordinance, impose a reasonable fine because of a similar refusal. 1 Dillon, Municipal Corporations [4 Ed.], section 223.

So, also, it is one of the common law incidents of all corporations to remove a corporate officer from his office for reasonable and just cause. Ibid, section 240. This principle was recognized and declared in State ex rel. v. Walbridge, supra; see, also, City v. Schoenbusch, 95 Mo. 618. These authorities have been instanced in reply to the suggestion of counsel for defendant that “a city can only do those things that its charter or the general statutes expressly authorize it to do." And surely no power could possess a stronger sanction of necessary implication, or could be more conducive toward “maintaining the peace and good government, health and welfare of the city" than one which enables the legal representatives of a municipal corporation to assemble in special meeting and pass such ordinance as either the exigency or expediency of the situation demands. And the authorities we find announce that among other implied powers of a municipal corporation is the one which allows a special meeting to be called upon due notice, or to be held without notice where all of the board are present, in which latter case the necessity of notice, in consequence of being waived by universal consent, is dispensed with. 1 Dillon, Municipal Corporations [4 Ed.], section 263; 1 Beach, Public Corporations, sections 268, 269. Such waiver occurred in the case at bar when ordinance 35 was passed. This being the case, it is wholly immaterial that section 132 of the ordinances of the defendant city required that should a quorum not be present, the meeting should stand adjourned till the next regular meeting.

b. Nor does it invalidate that ordinance because, as it is claimed, it was not read three times before its final passage. Section 1597, Revised Statutes, 1889, provides: “No ordinance shall be passed except by bill, and no bill shall become an ordinance, unless on its final passage a majority of the members elect shall vote therefor, and the yeas and nays entered on the journal; and all bills shall be read three times before their final passage.77 It is to be observed that the above section does not declare a sentence of nullity against a bill which is not read three times before. its final passage; such declaration is altogether confined to the preceding clauses of the section, and does not apply to the last clause. Similar views were held in State ex rel. v. Mead, 71 Mo. 266, and Barber Asphalt Pav. Co. v. Hunt, 100 Mo. 22. There are authorities to the contrary, but we shall adhere to our own decisions.

c. As to the statement that the mayor was not present when ordinance 35 was passed, it will answer this objection to say that the minutes of the meeting need not affirmatively recite his presence at the meeting when the passage of the ordinance occurred. His name is signed to the instrument and attested by the clerk, and hence it will be presumed that his signature was rightfully and not wrongfully made. State ex rel. v. Mead, supra; Barber Asphalt Pav. Co. v. Hunt, supra; Rutherford v. Hamilton, 97 Mo. 543.

d. Touching the objection that the contract was not made in writing in conformity with section 3157, Revised Statutes, 1889, it is enough to' say that the ordinance having been passed as required by law, which ordinance set forth the terms of the contract, and that ordinance being approved by the requisite vote and then accepted by the person or persons proposing to build the works, constituted a completed contract. This was the ruling in Lamar, etc., Water Co. v. City of Lamar, 26 S. W. Rep. 1025, followed by the more recent decision in the same ease, as well as that in Saleno v. Neosho, 127 Mo. 627, 30 S. W. Rep. 190. Under the rigid rule established by the statute of frauds, it was not necessary, in order to make a contract binding, that it should be all contained in one paper, signed by the party to be charged; but the terms of the contract may be contained in one paper, and the signature may be found in some other paper, provided that such second paper properly refer to the terms-containing paper. Fry, Spec. Perf. [3 Ed.], sec. 520. Numerous instances have occurred where letters have constituted the contract, the written evidence of and acceptance of it. lb., secs. 270, 529. It surely was never intended by the legislature that a rule of greater stringency should be applied in instances like the present, than in those just instanced.

e. And it is not true in point of fact that the ‘‘ordinance was not signed by either party to it,” because it was signed by the mayor, and he, in this regard, was the lawfully authorized agent of the city.

/. And G-uiney having accepted the proposal made hy the city in its ordinance 35, this completed the contract, as to the number of hydrants therein mentioned, and there was no necessity for the passage of ordinance 35b, which was in substance a copy of its predecessor, nor does it matter that ordinance 35b was not submitted to a vote. And it does not matter what the ■city thought of the effect of the contract entered into under the first ordinance, nor what Guiney thought or said about it. The subsequent statements of neither party to a validly entered into legal and written contract can affect or diminish its obligatory force.

II. We come now to ordinance 48, which provides for three additional hydrants. The claim is made that this ordinance is invalid on the ground that it was never adopted by a vote, etc. In our opinion such vote was unnecessary. There is an obvious difference between entering into a contract by ordinance, etc., for the erection of a system of waterworks, and the subsequent passage of an ordinance which provides for renting three additional hydrants in a system already contracted for.

III. Now, in relation to the acceptance of the works after completion, the following excerpts appear in eviidence:

“Aurora, Mo., April 18,1892.
11 Aurora Water Company, Aurora, Mo.:
“Gentlemen: — In accordance with the terms and provisions of waterworks ordinance and contract, being an ordinance entitled, ‘An ordinance providing for the erection, maintenance and construction of a system of waterworks in the city of Aurora, Missouri,’ and contracting with J. Guiney, his associates and assigns, after the completion and acceptance of said waterworks system for a term of twenty years, upon the terms and conditions as provided for in ordinance number 35, passed February 23, and ordinance number 35b, passed June 9, and number 48, passed in 1891.
“These ordinances provide for sixty fire hydrants, at $60 per annum, and three additional hydrants at $45 per annum; total hydrant rental per annum, $3,735. The terms, provisions, and tests required in said ordinance have been fully complied with and the ordinances are in full force and effect.
“The hydrant rental shall commence on the eleventh day of April, 1892, and continue for a term of twenty years.
“Acceptance approved by board of aldermen this eighteenth day of April, A. D. 1892.
(Attest) “H. R. Hamilton, City Clerk.
“Accepted on behalf of Aurora Water. Company. (Attest) “---, Secretary.
“By A. L.' White, President.”

The minutes of the board of aldermen under date June 6, 1892, at page 301 of the above journal, were then introduced. (After the formal parts.) “* * * Alderman made the following motion, which motion carried by the full vote of the members -of the board present. The motion is that the board of aldermen accept the water furnished by the waterworks for fire and other public uses of the city, the amounts of payments of water rental to be as heretofore provided by ordinance, and to date from and beginning April 18, 1892. * * *

“C. H. Babnabd, Mayor.

(Attest) “H. R. Hamilton, City Clerk.”

Then the minutes of June 20, 1892, at page 306, were read as follows: (After formal parts.) * * * “Minutes of formal meeting read and approved.” (Duly signed and attested by the clerk and mayor.) The following item, “Aurora Water Company, $772.50,” from the record of October 3, 1892, was read from page 328, as showing a payment in this amount to the water company.

The minutes of the board of July 3, 1891, at which meeting judges for election were selected and the resolution passed locating water mains and hydrants. (See above ordinance, supra.)

The report of the committee, made on the eighteenth day of April, 1892, which was appointed to inspect the location of fire hydrants, street mains, etc., was then read as follows: “The waterworks committee reported that they bad inspected tbe location of fire hydrants and street mains, and bad seen the water tests, and recommended that they be received by the city. A motion was then made that the waterworks be received, which motion was carried. A communication was presented in regard to an ordinance of acceptance of the waterworks, which was read the first time, and second and third time by title, and placed on its final passage. The vote being taken, stood: Ayes, Emmons, Prance, Westcott, and Wilson; total, four; nays, none; absent, Robinson and Gardner. * * *

“0. H. Babnabd, Mayor.

(Attest) “H. R. Hamilton, City Clerk.”

The above document addressed to the plaintiff company by Hamilton, the city clerk, was, it seems, known as “the waterworks acceptance,” in reference to Avhieh the following additional entries appear:

From record board of aldermen, May 1G, 1892, page 288 and 289: “The mayor’s veto of waterworks acceptance was then brought up and the question was, shall the bill pass, the mayor’s objections hereto notwithstanding. The roll was then called, and those voting nays were: Emmons, France, Morrison, Scott, Underwood and'Wilson; total, sis; ayes, none. Another ordinance was then presented in regard to receiving the waterworks, which was read the first time, and second and third times by title, the rules suspended and placed on its final passage, and the vote being-' taken stood, ayes, Emmons, France, Scott and Wilson; total four; nays, Morrison and Underwood; total, two.”

The regular meeting of the board of aldermen, held May 2, 1892. (After formal opening.) “ * * *- His honor, the mayor, returned the waterworks acceptance without his "signature, and giving his reasons for not signing it as follows, to wit:

‘Mayor’s Office, May 2, 1892.
‘To the Hon. Board of Aldermen of the City of Aurora:
‘Gentlemen: — I herewith return a document acted upon by your honorable body .at your last meeting, with my objections thereto; this document is as follows:’ ” Then follows the letter heretofore copied, and the mayor’s objection to the same. From these proceedings it would appear that the mayor at one time approved what he afterwards vetoed. But the record in this ease is made out in such a wretched fashion that it is impossible to tell what was done. At any rate it seems that the mayor’s veto was sustained, and then another ordinance was passed in relation to receiving the waterworks. What this ordinance was, or whether it receded the mayor’s approval,does not appear. Nor does it appear that an ordinance accepting the works was necessary. Bnt certainly some method should be used for the purpose indicated, and in all probability the report of a committee appointed for the purpose and reporting favorably would, on its approval by the board, be sufficient, and this it seems from the record actually occurred, before the attempted passage of the ordinance. If so, then the acceptance was complete, and could not be defeated by the failure to pass the quasi ordinance aforesaid.

IY. But if this is not so, still the city had it in its power to ratify -what had been previously done, inasmuch as ordinance 35 passed, its adoption by the requisite vote, and the acceptance by G-uiney, constituted a completed contract, one infra vires the' municipality. On this point, the learned author already cited observes: “A municipal corporation may ratify the unauthorized acts and contracts of its agents or officers, which are within the scope of the corporate poioers, hut not otherwise. Ratification may frequently be inferred from acquiescence after knowledge of all material facts, or from acts inconsistent with any other supposition. The same principle is applicable to corporations as to individuals.” 1 Dillon on Municipal Corporations [4 Ed.], sec. 463.

Now here the only ratification would be with regard to the simple acceptance of the work, work done under the full sanction of legitimate authority. “Strong evidence of the assent of the corporation is not required; hut such assent must he shown.” 1 Dillon on Municipal Corporations, sec. 464.

We incline .to the opinion that there has been a sufficient ratification of the report of the waterworks committee shown, and acceptance of the works by the use of the water for such a length of time without objection and by the payment of the first installment due for hydrant rentals, amounting to nearly $800. Having received the benefit of a contract fairly and lawfully made, the city should not be permitted to shirk the burden which goes hand in hand with the benefit received, by refusing to technically accept what it is perfectly willing to actually u,se. Such conduct will not be tolerated in a court of justice and we shall treat the works as accepted by the city.

Y. The last topic for discussion is the sufficiency of the petition. Such portion of it as is necessary to quote, is the following: “That heretofore, to wit: On the-day of-, 1891, the said defendant, by its mayor and board of aldermen, contracted with one J. Gruiney, his associates and assigns, giving and granting to said Gruiney, his associates and assigns, the exclusive right to furnish, by a system of waterworks, water* for the use of the city of Aurora and the inhabitants thereof for a term of twenty years. Said mayor and board of aldermen having been heretofore fully empowered and authorized to do so, by a vote, by ballot, of two thirds of the. qualified voters of said city, voting at an election held for that purpose, in the manner provided by ordinance, and that thereafter, said Gruiney duly assigned, set over and transferred all his right, title, franchise, privileges and immunities, under said contract and franchise, to this plaintiff, which proceeded to construct the said system of waterworks, as it was provided it should be done, in all things.”

Though the petition is very inartistically drawn, we regard its allegations as tantamount to a cause of action defectively stated and not a defective cause of action; in which former case its* defects can not be taken advantage of by a general demurrer or its equivalent, an objection, as in this instance, because it does not state facts, etc.

But though we regard the petition as good against general objections, yet, inasmuch as the court erred in refusing plaintiff judgment as prayed, we shall reverse the judgment and direct judgment to be entered here for the amount at issue with interest thereon.

All concur.  