Anselmi v. City of Rock Springs, 2088

• Decision Date: 24 June 1938
• Docket Number: 2088
• Parties: ANSELMI ET AL. v. CITY OF ROCK SPRINGS ET AL
• Court: Wyoming Supreme Court

80 P.2d 419

53 Wyo. 223

ANSELMI ET AL. v. CITY OF ROCK SPRINGS ET AL

No. 2088

Supreme Court of Wyoming

June 24, 1938

APPEAL from the District Court, Sweetwater County; V. J. TIDBALL Judge.

Action by John Anselmi and others against the City of Rock Springs a municipal corporation, and others to declare invalid certain bonds proposed to be issued by the municipality for the purpose of making improvements in a storm ditch to prevent and dispose of flood water. From a judgment for the defendants, plaintiffs appeal.

Affirmed.

For the plaintiffs and appellants, the cause was submitted on the brief of Glen G. Stanton of Rock Springs.

This action involves the validity of a bond issue by the City of Rock Springs, Wyoming. The question was decided by the lower court on a demurrer filed by defendants and sustained by the court. Plaintiffs elected to stand upon their pleading and judgment was rendered for defendants against plaintiffs. Section 22-1601, R. S. 1931, 5th sub-division, does not authorize the issuance of the bonds, for the reason that it confers no specific authority for such an issue. Only sanitary sewers are intended by said section. We grant that a conflict of authority exists on this question. State Board of Health v. City (N. J.) 35 A. 835; Aldrich v. Paine (Iowa) 76 N.W. 812; Mound City Company v Miller, 70 S.W. 721; Blaisdell v. Stoneham, 118 N.E. 919. It is the contention of plaintiffs that it would be necessary for Section 22-1601, R. S. to read "System of sewerage and drainage" in order to authorize issuance of bonds for the proposed improvements. The notice given to electors was misleading and void, in that it lead voters to believe that the bonds in question when computed with outstanding bonds did not exceed 2% of assessed valuation, when as a matter of fact outstanding bonds already exceeded 4% of the assessed valuation.

For the defendants and respondents, the cause was submitted on the brief of Edwin V. Magagna of Rock Springs, Wyoming.

The only limitation upon bonded indebtedness of the character here involved is found at Article 16, Section 5 of the State Constitution. The statutory limitation appears at Section 22-1603, R. S. 1931. The record discloses that the proposed bond issue would not exceed any constitutional or statutory limitation, provided they come under the correct classification. In considering the effect of Section 22-1601, R. S. we quote the language of Section 22-1605, R. S. Defendants contend that the term "System of Sewerage" used in this section, includes all types of sewers. Section 22-1603, R. S. uses the term "For the purpose of building and construction of sewerage systems." We also direct attention to Article 3, Chapter 22, R. S., relating to cities of the first class. See also Words and Phrases, First Series, p. 6458 and Second Series, p. 555; 57 C. J. 539; Pioneer Company v. Portland, 247 P. 319. Drainage laws are closely akin to sewer laws. Mound City Co. v. Miller (Mo.) 70 S.W. 721; Black's Law Dictionary defining "Sewer." As to the bond proposition being properly submitted to a vote of the people, reference should first be made to Section 22-1605, R. S., and we submit that the record shows full compliance therewith and also with Sections 36-402, 403 and 405, R. S. 1931. The judgment of the lower court should be sustained.

BLUME, Chief Justice. RINER and KIMBALL, J. J., concur.

OPINION

BLUME, Chief Justice.

This is an action brought by taxpayers of the City of Rock Springs to declare invalid certain bonds, in the sum of $ 75,000, proposed to be issued by the said city. The court sustained a demurrer to the petition, and plaintiffs refusing to plead further, judgment was entered for defendants, and plaintiffs have appealed. It appears that on October 13, 1937, the Mayor and City Council of Rock Springs passed and approved ordinance No. 537 to the effect that a special bond election should be held in the city in order that the electors might determine whether or not the city should be authorized to borrow money and issue its Coupon bonds in the sum of $ 75,000, for the purpose of making improvements in "Storm Ditch" and the channel of Bitter Creek, to prevent and dispose of flood water. Notice was directed to be duly published. This notice, duly published, in so far as material herein, is as follows:

"By virtue of Ordinance No. 537, passed and approved and published by the Mayor and Council of the City of Rock Springs, Wyoming, on Wednesday, October 13th, A. D. 1937, there will be submitted to the electors of the City of Rock Springs, at a special bond election to be held on Tuesday, November 2, A. D. 1937, the proposition whether or not the City of Rock Springs, in the State of Wyoming, and the Mayor and Council of the City of Rock Springs, Wyoming, shall be authorized to borrow money, and issue the coupon bonds of said City, in the amount of Seventy-Five Thousand Dollars ($ 75,000.00), and not exceeding, at any one time, when computed together with outstanding general bonds 2% of the assessed valuation of said city, for the purpose of making improvements in "Storm Ditch" and channel of "Bitter Creek" to prevent flood damage and for the purpose of making improvements to dispose of flood waters within the City of Rock Springs."

The ballots submitted to the electors substantially embodied the provisions in the foregoing notice.

The election was duly had pursuant to notice, and the bonds were duly authorized to be issued by a large majority, both of the property owners as well as of the non-property owners. It appears that on December 6, 1937, the City of Rock Springs accepted the bid of the Stockgrowers National Bank for the purchase of the bonds in the amount above mentioned, and intends to issue the bonds to the bank unless prevented by the court from doing so; that the assessed valuation of the city is the sum of $ 4,943,676; that the present bonded indebtedness of the city already is in the sum of $ 192,000, some of the bonds having been issued for sewer purposes.

Section 5 of Article 16 of the Constitution provides that:

"No city, town or village, or any sub-division thereof, or any sub-division of any county of the state of Wyoming, shall, in any manner, create any indebtedness exceeding 2 per centum on the assessed value of the taxable property therein; provided, however, that any city, town or village may be authorized to create an additional indebtedness, not exceeding 4 per centum on the assessed value of the taxable property therein as shown by the last preceding general assessment, for the purpose of building sewerage therein."

Section 22-1601, Rev. St. 1931, provides that each incorporated city and town in the state shall have power to establish, construct, purchase, extend, maintain and regulate a system of sewerage. Section 22-1605, Rev. St. 1931, provides that any incorporated city or town is authorized to borrow money and issue coupon bonds in any amount not exceeding the limitation provided in Section 22-1603 for the purpose or purposes enumerated in Section 22-1601. Section 22-1603 provides that no city or town shall in any manner create any indebtedness exceeding two per centum of the taxable property therein, except an additional amount not exceeding four per centum of the assessed valuation of the property therein, for the purpose of building and construction of sewerage systems.

The question before us is as to whether or not the bonds proposed to be issued herein are for the purpose of constructing a system of "sewerage," within the contemplation of the constitution and statute above mentioned. If so, the proposed bonds will be within the limit of indebtedness prescribed in such cases. The term "sewerage" is usually applied to a system of sewers, and "sewage" to the matter carried off, although these terms are frequently used interchangeably. McQuillan, Municipal Corporations (2d ed.) Sec. 1640. So we must inquire whether the proposed work constitutes a "sewer" or "sewers." It is the contention of appellants that the proposed work constitutes "storm sewers"; that these are not "sewers" within the meaning of the constitution and statutes, but that the term "sewer" properly construed refers only to sanitary sewers. It is true that at times, under special circumstances, the term "storm sewer"--which, in other words is a drain--has been held not to be included in the term "sewer." Roebling v. City of Cincinnati, 102 Ohio St. 460, 132 N.E. 60; City of Sand Springs v. Hohl, 90 Okla. 124, 216 P. 138. Originally, the word "sewer" meant an artificial conduit for water drainage, encompassed with banks on both sides to convey surface waters into the sea and thereby preserve the adjacent lands from inundation. McQuillan, supra, Section 1538. Webster's New International Dictionary, 2d Ed., (1935) defines the term "sewer" as (1) a ditch or surface drain; (2) an artificial, usually subterranean, conduit to carry off water and certain waste matter, as (a) surface water due to rainfall; (b) household waste, as slops, waste water from sinks, baths, etc., and excreta consisting of urine, or feces; (c) waste water from industrial works. The New English Dictionary (1914) defines "sewer" to mean: 1. An artificial watercourse for draining marsh land and carrying off surface water into a river or sea; (2) an artificial canal or conduit, usually subterranean, now used to carry waste water and the refuse from houses and towns. The National Encyclopaedia, 9, 166, (1932) states in connection with "sewerage" as follows:

"The term is more commonly used for systems conveying sewage but is also applied to 'storm sewers' intended to convey away storm water, surface water, street wash and other drainage. * * * Sewers are primary essentials to community...