The State ex rel. City of Joplin v. Wilder

• Decision Date: 09 March 1909
• Citation: 116 S.W. 1087,217 Mo. 261
• Parties: THE STATE ex rel. CITY OF JOPLIN v. WILLIAM W. WILDER, State Auditor
• Court: Missouri Supreme Court

116 S.W. 1087

217 Mo. 261

THE STATE ex rel. CITY OF JOPLIN v. WILLIAM W. WILDER, State Auditor

Supreme Court of Missouri

March 9, 1909

Demurrer sustained in part, and peremptory writ denied.

Jno. J Wolfe and Thomas Dolan for relator.

(1) Relator submits that respondent's first contention "that the sewers hereinbefore described are not public sewers but are district sewers," is without merit. To sustain their point counsel seem to rely upon the case of South Highland and Improvement Co. v. Kansas City, 172 Mo. 523. But an analysis of this case will show that it does not support their position, because it does not decide that a sewer such as contemplated would not be a public sewer. Any discussion of what is meant by public sewer was unnecessary to the decision of that case, the suit being one to enjoin Kansas City from constructing a joint district sewer. Sec. 5847, R. S. 1899 (charter governing third class cities) provides, "The council shall have power to cause a general sewer system to be established, which shall be composed of three classes of sewers, to-wit, public, district and private sewers. Public sewers shall be established along the principal courses of drainage, at such points, to such extent, of such dimensions and under such regulations as may be provided by ordinance, and these may be extensions or branches of sewers already constructed or entirely new throughout, as may be deemed expedient." It will be observed that after the word "public" the word "sewers" is used, which is plural, meaning, of course, that there may be more than one public sewer. Now, if a sewer to be a public sewer must serve the whole city, what did the Legislature mean by providing for a plurality of public sewers? The phrase "courses of drainage" is plural, meaning more than one course of drainage. That is to say, the city may be drained from several different directions through as many different courses, and, each course being determined by the topography of the surface would necessarily be independent of any other course of drainage. Therefore, no one sewer established could serve the city as a whole because it would be physically impossible. Then, if the law is as contended for, how could such a city construct a public sewer? At what "point" begin and where end? As if to obviate any possible uncertainty as to the intention, in the same connection certain restricting or qualifying phrases are used that should remove any doubt. The words "at such points," "to such extent" and "of such dimensions" in the same sentence apparently place it beyond question that the Legislature intended to provide that public sewers should be constructed at such points along certain principal courses of drainage and of such length as the city council might in its discretion determine. That is to say, the city council has been given the discretion to construct as much or as little public sewers as they may in their judgment deem proper. An analysis of the language of this statute brushes away the contention that a sewer to be constructed as a public sewer must serve the whole city. Gilmer v. Line Point, 18 Cal. 229; Memphis Freight Co. v. Memphis, 4 Coldw. 425; Tyler v. Beecher, 44 Vt. 656; Coster v. Tidewater Co., 3 C. E. Green 63; Saddler v. Langham, 34 Ala. 323; Simonton on Mun. Bonds, sec. 35. The statute recognizes no such distinguishing features as "sanitary" sewer or "storm sewer," the terms "sanitary" sewer and "storm" sewer being used in the ordinance merely to indicate the different purposes for which the sewers were needed; the only classification made by the statute being "public" sewer, "district" sewers and "private" sewers. And in this connection we desire to call attention to Sec. 5848, R. S. 1899, which provides, among other things, that the council may cause "district" sewers to be constructed wherever the council shall deem such sewers necessary for sanitary or other purposes. Martin v. Kansas City, 110 Mo.App. 37. Where a city had authority to construct sewers, the fact that it undertook to construct a particular sewer not a part of a general or district system could make no difference, if such sewer emptied into a natural watercourse, thus taking the place of a public sewer as an outlet, and the city in constructing and maintaining the sewer in question was acting within the scope of its authority. Foncannon v. Kirksville, 88 Mo.App. 285; Mining Co. v. Joplin, 124 Mo. 136; Abbott on Mun. Corp. p. 1110; Kansas City v. Richards, 34 Mo.App. 521; Moberly v. Hogan, 131 Mo. 19. The matter of determining these features of public sewers, as to the extent or dimensions or whether they shall be extensions or branches of other public sewers already constructed, or entirely new throughout, was left by the Legislature to the discretion of the city council. The court has nothing whatever to do with the discretion of the council in these particulars, nor in determining the question of necessity or expediency in the construction of a sewer to be used for the one purpose or both as may seem to the council necessary, provided that the council has legislative authority for doing what it undertakes to do. Cooley on Constitutional Limitations, 164; Skinker v. Heman, 148 Mo. 355; St. Louis v. Greene, 7 Mo.App. 168; Kansas City v. Richards, 34 Mo.App. 521; Abbott, Mun. Corp., pp. 2228-9; Elliott on Roads and Streets (2 Ed.), 469; Mining Co. v. Joplin, 124 Mo. 138; Heman v. Allen, 156 Mo. 534. (2) Only one proposition was submitted to the people for a vote at the special election provided for by ordinance No. 3044. The city of Joplin is proceeding under an express charter provision to establish and construct public sewers, as a part or parts of a general sewer system thereof. The city council has declared it necessary to establish and construct a public sanitary sewer in Sanitary Sewer District No. 7, in West Joplin, also a storm sewer to be known as Willow Branch Main in Willow Branch District in said city. The demurrer admits that these were necessary additions to or extensions of the system of public sewers. If so, then the purpose to build them would be single, in that it is the enlargement of the public sewer system. Min. Co. v. Joplin, supra; State ex rel. v. Allen, 178 Mo. 576; State ex rel. v. Wilder, 200 Mo. 97. However, the difficulty of respondent seems to be to distinguish between the submission to a vote of the people a question in fact involving two or more separate and distinct propositions and the submission of a question to be voted upon, which, while involving or comprising two phases or branches, both arising out of and being in essence parts of the same object or purpose sought to be attained in the proceedings, is yet but a single proposition. Gray v. Mount, 45 Iowa 595.

Herbert S. Hadley, Attorney-General, and John Kennish and F. G. Ferris, Assistant Attorneys-General, for the State; Grayston & Graham, amici curiae.

(1) Each sewer in controversy is exclusively reserved for the drainage of an area much less than the whole city of Joplin, is available only as a means of drainage to such limited area, and is, therefore, not a public sewer. South Highland Land and Improvement Company v. Kansas City, 172 Mo. 523. (2) If it be held that said proposed sewers are public sewers, then we contend that the submission to the voters contained two separate and distinct propositions, one for the construction of a public sanitary sewer in Sanitary Sewer District No. 7 in West Joplin, and another for the construction of a storm sewer in Willow Branch District in the city of Joplin, violative of the well-recognized principle of law that "two propositions cannot be united in the submission so as to have one expression of the vote answer both propositions." State ex rel. v. Allen, 186 Mo. 673; Gray v. Mount, 45 Iowa 591; McMillan v. Lee County, 3 Iowa 311; Board of Supervisors of Fulton Co. v. Railroad, 21 Ill. 373; City of Denver v. Hayes (Colo.), 63 P. 311; City of Leavenworth v. Wilson (Kan.), 76 P. 400; Farmers Loan & Trust Co. v. Sioux Falls (S. D.), 131 F. 912.

BURGESS, J. On the first paragraph, Valliant, C. J., concurs with Burgess, J., in holding that the sewers are not public sewers, but Fox, Lamm, Graves, Woodson and Gantt, JJ., dissent, and are of the opinion that the sewers are public sewers. Burgess, J., and Valliant, C. J., dissent; but as to the second paragraph, the demurrer should be sustained, and the proceedings dismissed. Woodson, J., concurring and dissenting. Graces, Gantt and Lamm, JJ., concur with Judge Woodson.

OPINION

In Banc

Mandamus.

BURGESS J.

The relator, the city of Joplin, filed its petition, asking this court for a writ of mandamus to compel respondent, W. W. Wilder, State Auditor, to register bonds of said city to the amount of $ 96,000, the respondent having refused so to do upon the ground that said bonds were shown to be invalid by the proceedings leading up to their issuance.

The city of Joplin, as appears from the petition, is a city of the third class. In 1890 a general sewer system was established in said city, since which time the corporate limits of the city have been extended, and its population greatly increased. In November, 1907, Sewer District No. 7 having been established in territory not served by the said original sewer system, and Willow Branch District having been established within the territorial limits and sewer drainage area of said original sewer system, and being in part served by a district sanitary sewer therein, the city council of said city began proceedings to bring about the construction, at public expense, of a sanitary sewer in said District No. 7, and a storm sewer in said Willow Branch District. Each such proposed sewer was to be independent of the other, and independent of the said...