Prior v. Buehler & Cooney Const. Co.

• Court: Missouri Supreme Court
• Writing for the Court: Marshall
• Citation: Prior v. Buehler & Cooney Const. Co., 71 S.W. 205, 170 Mo. 439 (Mo. 1902)
• Decision Date: 10 December 1902
• Parties: PRIOR v. BUEHLER & COONEY CONST. CO. et al.

71 S.W. 205

170 Mo. 439.

PRIOR v. BUEHLER & COONEY CONST. CO. et al.

Supreme Court of Missouri.

December 10, 1902.

MUNICIPAL CORPORATIONS—SEWERS—ASSESMENT OF BENEFITS—STATUTES—CONSTITUTIONALITY — AREA RULE — JOINT DISTRICT SEWERS—BENEFITS — JURISDICTION — DECISION BY CITY COUNCIL—CONCLUSIVENESS.

1. St. Louis city charter authorizing the construction of sewers, and providing that the cost shall be charged proportionately on all property abutting the improvement, or within an established benefit district according to the area rule, is constitutional.

2. St. Louis City Charter, art. 6, § 22, provides that joint district sewers may be constructed whenever the municipal assembly, on the recommendation of the board of public improvements, deem it necessary that a sewer be constructed for the drainage or sanitary improvement of a section of the city comprising more than one established sewer district or territory not yet in an established sewer district. Held, that where a sewer united more than one district, and provided a main outlet or intercepting sewers for the joint benefit of such districts, and was to be paid for by special taxes assessed on all property within the joint district, it was a joint district sewer, and authorized by such section.

3. Where the sewers constructed in a territory included within a joint sewer district in times of high water overflowed, and sewage was caused to back up into the cellars of houses located on the lower ground within the district, and at such times sewer gas escaped into the houses on the high ground, except such as had specially good plumbing, the construction of a joint district sewer to relieve such condition was a benefit to the owners of property located on the higher ground, though their property was connected with the sewers previously established.

4. Whether property is benefited by the construction of a sewer is a question within the exclusive jurisdiction of the legislative branch of the city government, and cannot be reviewed by the courts in the absence of fraud.

In banc. Appeal from St. Louis circuit court; S. P. Spencer, Judge.

Bill by Christian F. Prior against the Buehler & Cooney Construction Company and others to restrain the construction of a city sewer. Judgment for defendants, and plaintiff appeals. Affirmed.

This is a bill in equity to restrain the construction of the Arsenal street joint district sewer in the city of St. Louis on the grounds, inter alia, that to tax the plaintiff's property for the benefits received by it from the sewer would violate article 14 of the constitution of the United States, and sections 21 and 30 of article 2 and sections 3 and 4 of article 10 of the constitution of Missouri. The circuit court entered judgment for the defendants, and the plaintiff appealed.

Daniel Dillon, for appellant. Chas. W. Bates, Wm. F. Woerner, and Becker & Donovan, for respondents.

MARSHALL, J.

In condensed form the controversy is this: Formerly the charter of St. Louis provided for (1) public sewers, to be constructed "along the principal courses of drainage," and to be paid for out of the general revenue of the city; (2) district sewers, to "be established within the limits of districts to be prescribed by ordinance as approved by the board of public improvements, and so as to connect with a public sewer or some natural course of drainage," and to be paid for by special assessments against all. lots of ground in the sewer district in the proportion that the area of such lots bore to the total area of the district; and (3) private sewers, connecting with public or district sewers, and to be constructed by private persons, and paid for by them. In October, 1901, the people of St. Louis, under the authority conferred upon them by the constitution of the state, amended the charter so as to abolish the charter provisions relating to sewers above referred to, and substituted therefor the following provisions relating to sewers:

"Sec. 20, art. 6. A sewer system is hereby established, which shall be divided into four classes, viz: `public,' `district,' `joint district,' and `private' sewers; the classes in any case being determined by the authority of its construction, and the definitions hereinafter specified, irrespective of the area drained, the size, character or purpose of the sewer. Public sewers are defined to be those heretofore constructed or acquired under authority of an ordinance and paid for wholly out of the general revenue. Public sewers hereafter constructed shall be such sewers as the board of public improvements may deem it expedient to establish and construct without creating a sewer district or joint sewer district; and such sewers may be established and constructed at such times, to such extent, of such dimensions and materials and under such regulations as may be provided by ordinance, recommended by the board of public improvements, and shall also consist of such branches to sewers already constructed as may be considered expedient by said board: provided, however, that no sewer shall be run diagonally through private property when it is practicable to construct the same parallel with the lines of such property, nor shall any public sewer be constructed through private property when it is practicable to construct the same along a street alley or public highway. An appropriation shall be made to meet the cost of each public sewer from the public revenue. Public sewers may be connected with any other sewer of any class, or with some natural course of drainage. District sewers are defined to be those constructed or acquired under authority of ordinances, within the limits of an established sewer district, and paid for by special tax assessed upon the property in the district. Joint-district sewers are defined to be those constructed or acquired under the authority of ordinances uniting one or more districts or unorganized territory, for the purpose of providing main outlet or intercepting sewers, for the joint benefit of such districts or territory, and paid for by special taxes assessed upon all the property in said joint sewer district. Private sewers are defined to be those built with or without permits, and paid for by the parties, persons, associations or corporations constructing the same."

"Sec. 22, art. 6. Joint district sewers may be constructed or acquired as follows: Whenever the municipal assembly, on the recommendation of the board of public improvements, deems it necessary that a sewer be constructed in any part of the city, for the drainage or sanitary improvement of a section of the city comprising more than one established sewer district, or territory, not yet in an established sewer district, it may, by ordinance, unite and establish such sewer districts, or parts thereof, and unorganized territory, into a joint sewer district, and cause a sewer or sewers to be constructed therein, and the whole cost thereof to be assessed against all the property within the boundaries of such joint sewer district as a special tax; but if the joint district sewer is to drain territory part of which lies outside of the city limits, and can not be included in the joint sewer district, then the municipal assembly shall provide in the ordinance or ordinances authorizing the construction of the joint district sewer or sewers, that a part of the cost of such sewer or sewers, in the proportion that the area of the unincluded territory bears to the whole area drained, shall be paid out of the general revenue, in which case the remainder of the cost shall be assessed as hereinafter provided. The total cost of joint district sewers shall be levied and assessed upon all the property in the joint sewer district as follows: Whenever the whole or a section of a joint district sewer is fully completed, the sewer commissioner shall cause the total cost thereof to be computed, and shall certify the same to the president of the board of public improvements, and the president of said board shall assess it as a special tax against all of the lots or parcels of ground in the joint sewer district, in the ratio that the area of each lot or parcel of ground bears to the area of the whole district, exclusive of the area of streets, avenues, public highways and alleys, and the president of said board shall cause to be issued a special tax bill against each lot or parcel of ground in the joint sewer district,...