McMurry v. Kansas City

• Decision Date: 26 June 1920
• Docket Number: No. 22198.,22198.
• Citation: 223 S.W. 615,283 Mo. 479
• Parties: McMURRY v. KANSAS CITY et al.
• Court: Missouri Supreme Court

223 S.W. 615

283 Mo. 479

McMURRY v. KANSAS CITY et al.

No. 22198.

Supreme Court of Missouri, in Banc.

June 26, 1920.

Appeal from Circuit Court, Jackson County; C. A. Burney, Judge.

Suit by J. W. McMurry to enjoin Kansas City and Thomas Kelley & Sons from constructing a sewer. Decree for defendants and plaintiff appeals. Affirmed.

Clarence S. Palmer, of Kansas City, for appellant.

E. M. Herber, City Counselor, Burr N. Mosman and J. C. Petherbridge, Asst. City Counselors, all of Kansas City (M. A. Fyke, of Kansas City, of counsel), for respondents.

WALKER, C. J.

Appellant brought this suit in the circuit court of Jackson county to enjoin respondents from constructing a joint district sewer in Kansas City, Mo., the outlet or termination of which was to be in the state of Kansas. Appellant is a property owner in the joint sewer district whose land would be subject to assessment for its proportionate part of the cost of the work. The contract for same has been awarded by said city to the other respondent.

Upon a hearing in the circuit court of Jackson county on the 1st day of April, 1920, there was a finding for defendants, denying the application for an injunction; from which an appeal has been perfected to this court.

The contemplated joint district sewer is designed to receive the entire volume of the water carried by a stream designated as Turkey creek, which now affords surface drainage to a large area of said city, and to divert this water into the proposed sewer.

The purpose sought to be accomplished is the prevention in the future of overflows after freshets, from which this section of Kansas City has heretofore suffered; the more complete removal of the sewage from that part of Kansas City drained by the proposed joint district sewer and its laterals and feeders; and the improvement of sanitary conditions, which it is stated will result therefrom.

There is no dispute about the facts, the case having been submitted to the trial court upon an agreed statement of same. That the condition existing should be met by the city is not questioned; no contention is made that the plan proposed and embodied in the contract is not practicable; and the salutary effect which will result from an improvement of present conditions is conceded. The sole contention is that Kansas City is attempting in this matter to exceed its charter powers. It is contended: First. That under the charter providing for the construction of joint sewer districts (section 8, art. 8) there is no authority to construct any part of a joint district sewer outside the limits of the city. In this case the outlet for a distance of 447 feet, at an estimated cost of $347,500, is to be constructed, not only beyond the city limits, but outside the state of Missouri. Second. That the sewer provides drainage facilities for about 250 acres of land in the city of Rosedale in the state of Kansas, and that the burden of caring for this drainage should not be assessed against the owners of land in the joint sewer district in Kansas City, Mo. Third. That there is no authority in the charter to construct sewer pumping stations for the purpose of operating the sewer in times of high water by mechanical means. Fourth. That lateral sewers of the extent herein provided for are necessary appurtenances to joint district sewers, and that the districts in which the former are located should bear their proportionate share of the cost of the latter instead of assessing said cost against the property alone within the joint sewer district. Fifth. That the sewer is of such magnitude and character, and its cost so great that it should not be, constructed as a joint district sewer, but should be paid for out of the general city revenue or by the proceeds of bonds issued by the city.

I. Legislative Authority—The powers granted to Kansas City under its charter, adopted in 1908, pertinent to the matter at issue, are as follows:

"To construct and maintain sewers, drains and all works necessary for the disposition of sewage." Section 1, art. 1, p. 96.

"To divide the general sewer system of the city into four classes, to wit: Public, district, joint district and private sewers. The city may, by ordinance, find and determine the class to which any sewer belongs, and the finding and determination of the city in that respect shall be final and conclusive." Section 5, art. 8, p. 323.

"To pay for public sewers out of the general fund of the city." Section 6, art. 8, p. 325. "To construct district sewers and pay for same by special tax bills issued upon the district created for that purpose." Section 7, art. 8, p. 325.

"To create and establish joint sewer districts for the purpose of constructing therein joint district sewers, and provide for the payment for the construction of same in special tax bills issued upon the joint district, or partly in cash and partly in special tax bills, as determined by ordinance of the common council." Section 8, art. 8, p. 326.

The power conferred on the city to construct and maintain sewers, drains, and all works necessary for the disposition of sewage appears in section 1 of article 1 of the charter before quoted. A subsequent provision of the charter, which is a necessary supplement of the power to construct and maintain sewers and without which the latter could not be rendered practically effective, authorizes the common council to establish, erect and keep in repair * * * sewers, sewer outlets within or without the corporate limits of the city. Paragraph 13, § 1, art. 2, p. 145, Charter. This power is further and more definitely defined in relation to the construction and manner of payment therefor of outlets for joint district sewers, within or without the corporate limits of the city, in section 10, art. 8, p. 327, of the charter, as follows:

"Whenever the city shall deem it necessary, it may, by ordinance, provide for the construction within or without the limits of the city, of septic tanks or other sewer reduction devices for the purpose of purifying the discharge from public, district or joint district sewers, or outlet thereof; the cost of such septic sewer tanks or devices may be paid for in part or in whole out of the general fund, or in case of a district or joint district sewer, or outlet therefor, in part or in whole, in special tax bills, as a part of the cost of constructing or extending the district or joint district sewer or outlet therefor, as may be designated by ordinance providing therefor."

Further authority for constructing outlets for sewers outside of the city limits, and paying for the same in the manner there proposed, is found in section 25 of article 6 of the charter. That section provides for the acquisition of lands outside of the corporate limits as may be required for a right of way for any such outlet sewers, and further provides, among other things, that the cost of constructing such outlets and all appurtetances may be paid for in special tax bills against the lands embraced within the district deemed to be benefited. That portion of the section relating to the cost of such outlets is as follows:

"The cost of constructing such outlet and all appurtenances which may be constructed in connection with such outlets, less such sum as may be appropriated by the city for that purpose or otherwise paid, shall be paid for in special tax bills, as hereinafter provided, against all lands, exclusive of highways, streets and alleys embraced within the said district or districts." Page 285, Charter.

Section 35 of article 6, page 289, of the charter, further provides for the cost of outlet sewers, as follows:

"The cost of constructing any outlet sewer, appurtenances and works in connection therewith or to be used in connection therewith on or along said right of way course or drainage or watercourse or on said land or any part thereof, less such sum as may have been appropriated by the city for that purpose or otherwise paid as aforesaid, shall be paid for wholly or in part in special tax bills against all lands embraced within said district or districts, exclusive of public highways, streets and alleys, in proportion to the area of each tract, the work to be done and the special tax bills to be issued in accordance with the provisions of this charter concerning the construction of district sewers and the issuing of special tax bills therefor so far as the same may be applicable."

In addition to the foregoing, the Legislature of this state in 1911 (Laws 1911, p. 334) passed a general enabling act, by which cities of the class to which Kansas City belongs are empowered to "contract with drainage districts or with other public corporations in this or any adjoining state for co-operation or joint action in building sanitary and storm sewers in watersheds extending into the territorial limits of all the districts, or corporations so co-operating, and in constructing levees along the banks M, or shortening, diverting or otherwise improving any natural water course to prevent its overflow, where the same overflow is likely to cause injury or damage to lands situated within the territorial limits of all the districts or corporations so co-operating."

Other sections of this act peculiarly appropriate to the discussion of the issues here involved, more comprehensively declare the extent of the power conferred, and provide the manner in which the improvement thus authorized shall be paid for. These sections are as follows:

"Sec. 2. Where a watershed located partly within any such city and partly within an adjoining state requires for the health, safety and comfort of the inhabitants of such city the construction of sewers and protection against flood, such city may, with consent of such adjoining state, but with or without the co-operation of public corporations of such adjoining state, build sanitary or storm sewers, or construct levees along the banks of, or shorten, divert or otherwise improve any natural...