State v. Wilder

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

116 S.W. 1087

217 Mo. 261

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

Supreme Court of Missouri.

March 9, 1909.

1. MUNICIPAL CORPORATIONS (§ 962)—POWER TO TAX—PUBLIC IMPROVEMENTS—SEWERS.

After a general sewer system had been established in a city, the corporate limits were extended, and two sewer districts were formed, one out of territory not served by the original system and the other in territory of the original system served in part by a district sanitary sewer; the city proposing to construct a sanitary sewer in the first additional district and a storm sewer in the other, each to be independent of the other and of the original system. The proposed sewers would drain only a limited portion of the city. Held, that the sewers were public sewers, for the construction of which the whole city could be taxed.

2. MUNICIPAL CORPORATIONS (§ 918)—ISSUANCE OF BONDS—SUBMISSION OF QUESTION —SEPARATE PROPOSITIONS.

Where the question of issuing bonds for the constructing of two distinct sewer systems in different parts of a city and levying an annual tax for their payment was submitted to the voters of the city as a single proposition, so that they had no other alternative than to vote for or against both systems, the submission was invalid.

Valliant, C. J., and Burgess, J., dissenting in part.

Mandamus by the State, on the relation of the City of Joplin, against William W. Wilder, State Auditor. Dismissed.

J. J. Wolfe and Thos. Doland, for relator. Elliott W. Major, Atty. Gen., for respondent.

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 original sewer system, except that a small portion of the said proposed sewer in district No. 7 would discharge into the original public sewer. Said district No. 7 is about one-half of a mile wide and about two miles long, and lies in the west part of the city of Joplin, and said Willow Branch district, defined by certain natural drainage limits, is situated along a natural drainage course, known as "Willow Branch," and embraces an area of about 40 blocks, bounded by said district No. 7 and several other sewer districts of said city. Pursuant to an ordinance passed by the city council of said city on November 26, 1907, a special election was held in said city, at which election was submitted to the voters as a single proposition the question of authorizing the city council to issue city bonds to the extent of $96,000, and to levy an annual tax for their payment, for the purpose of constructing said proposed two sewers, which proposition was favored by the required proportion of voters voting thereon. The said bonds in April, 1908, were presented to the respondent for registration, but he refused to register the bonds for two reasons given by him, to wit: "First, that said sewers hereinbefore described are not public sewers, but are district sewers; and, second, that the question as to authorizing the issuance of said $96,000 in bonds was submitted to the voters as a single proposition upon which the voters were required to vote `Yes' or `No,' while, in fact, said question submitted contained two separate and distinct propositions, one relative to sanitary sewer in district No. 7 and one relative to a storm sewer in Willow Branch storm sewer district, which said two propositions should have been submitted singly."

Respondent, by demurrer, raises the issue whether relator's petition states facts sufficient to constitute a cause of action and sufficient to authorize the issuing of the writ of mandamus therein prayed for.

The proposition voted on at said election was: "To increase the indebtedness of the city of Joplin, Mo., $96,000 for the purpose of constructing a public sanitary sewer in sanitary sewer district No. 7 in West Joplin, Mo., also a storm sewer to be known as `Willow Branch main,' and laterals thereto, in Willow Branch district in said city, all to be done according to the plans therefor now on file in the office of the city clerk of said city, and to purchase the necessary grounds and rights of way therefor, and authorizing the issuance of bonds therefor, the levy of an annual tax sufficient to pay the interest on said bonds as same shall fall due, and to constitute a sinking fund for the payment of said bonds." It is clear that said sewer district No. 7 is in area much less than the city of Joplin, within which it lies, and, as the sewer contemplated would be available only as a means of draining such limited territory, it cannot be regarded as a public sewer. As to Willow Branch district, in which it is purposed to construct said storm sewer for the drainage of surface water, it is entirely within the original limits of said city. This sewer would have an outlet of its own into Joplin creek. It would in no way be connected with the original sewer system, or with said sanitary sewer in district No. 7, and would drain but a small part of the territory lying within the original limits of said city. For sanitary purposes, however, a part of said Willow Branch district is now served by a district sewer which is connected with and part of the original sewer system. It is apparent that neither of said proposed sewers was included within or contemplated by the general sewer system originally established by said city, and that neither constitutes a system or part of a system for the benefit of the entire city. The property of the whole city can only be taxed to pay for the construction of said proposed sewers upon the theory that they are public sewers for the benefit of the general public. Ordinance No. 3044, on which said bond issue is based, does not describe said proposed storm sewer in Willow Branch district as a public sewer; and, while said ordinance denominates the...