State ex rel. City of Joplin v. Wilder , 217 Mo. 261 ( 1909 )

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 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 forty 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 sewer proposed to be constructed in District No. 7 as a “public sanitary sewer,” it is a district sewer, and the council of said city had no authority to authorize the construction of a district sewer at public expense.

In South Highland Land & Improvement Co. v. Kansas City, 172 Mo. l. c. 534, a public sewer is defined by Yalliant, J., as follows: “It is a sewer open and available to the whole city, and not limited to any particular part. In a sense a sewer that drains one-fourth of a large city is of benefit to the whole city. But that is true in the same sense of a small district sewer, or even of a private sewer. For if a small district, or even an inhabited private house, becomes in an unsanitary condition, its injurious influence is extended beyond its own limits. If a sewer is available as a means of drainage to an area less than the. whole, even if it were physically possible to drain the whole into it, it is not a public sewer. And this is so regardless of its dimensions.”

But there is another reason why a peremptory writ should not be awarded in this case, and that is that the proposition submitted to the voters embraced two separate and distinct propositions; one for the construction of a public sanitary sewer in District No. 7, in West Joplin, and another for the construction of a storm sewer in Willow Branch District, in said city. In the way this was submitted to the voters, they had no alternative than to vote, if they voted at all, for or against both propositions. They could not vote for one and against the other, however much they might have desired to do so.

In State ex rel. v. Allen, 186 Mo. 673, the proposition voted upon at the election was “for said city to-become indebted in the sum of twelve thousand dollars in excess of its annual revenue, for the following purposes, to-wit: Forty-five hundred dollars to be used for the purpose of purchasing a site and the erection and construction of a public building thereon or the purchase of a site and building to be used for a city hall, city prison and hose house and for furnishing the same, and the further sum of seventy-five hundred dollars to be used in making repairs and improvements in waterworks and electric light plant and extension of water mains and electric lines belonging to said city.” This was all submitted as a single proposition. It was held that this submission contained at least two separate and distinct propositions, one for an increase of municipal indebtedness to a certain amount for one purpose, and another for an increase of municipal indebtedness for another and different purpose, and “that two propositions cannot be united in the submission so as to have one expression of the vote answer both propositions as voters thereby might be induced to vote for both propositions who would not have done so if the questions had been submitted singly (21 Am. and Eng. Ency. Law (2 Ed.), 47, a principle recognized by this court in the recent case of State ex rel. v. Allen, 178 Mo. 555.”

The voters should have been given the opportunity to vote for and against each object. As submitted, the voters could vote for or against both, but not for one, and against the other. The property-owners in District No. 7 were not, it is clear, interested in the proposed storm seyer in Willow Branch District, for said two districts are not contiguous, nor do they lie in the same part of the city, nor in the same natural drainage area; and the proposed sanitary sewer in District No. 7 would not in any manner connect with or have any relation to said storm sewer; nor would the citizens of Willow Branch District have any interest in the proposed sanitary sewer for District No. 7; nor would the people of the city of Joplin, outside of said proposed sewer districts, be served or benefited by either of them.

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. As to the second paragraph, all concur.

Our conclusion, therefore, is that the demurrer tó the first paragraph should be overruled, from which Burgess, J., and Valliant, C. J., dissent; but as to the' second paragraph, the demurrer should be sustained, and the proceedings dismissed. It is so ordered.