Opinion No. 70-156 (1970) Ag ( 1970 )

COUNTY SEWER IMPROVEMENT DISTRICT — CANNOT INCLUDE CITY PROPERTY A county Sewer Improvement District cannot include within its corporate boundaries any property within the territorial limits of an incorporated city or town. The Attorney General has considered your letter of March 9, 1970, wherein you request an opinion upon the following question: "May a sewer district be created under Chapter 20, Title 19, Oklahoma Statutes of 1961, as amended, where the property to be included in the proposed district lies both outside and within the territory limits of an incorporated city?" Chapter 20, Title 19, Oklahoma Statutes of 1961, (19 O.S. 871 [19-871] to 19 O.S. 898.7 [19-898.7] [19-898.7] (1961)) provides generally for sewer improvement districts upon petition by residents of a given area or a majority of the holders of title to land in such area. The petition is filed with the Board of County Commissioners and must set out the territory desiring to be embraced in such sewer district. The petition must be accompanied by a map of the proposed district showing the boundaries and the approximate location of the sewer line or lines and the sewage treatment plan. The petition is filed with the County Clerk and notice given setting out the time when the petition will be considered by the Board of County Commissioners so that interested persons may appear and be heard. The Board of County Commissioners determines after such hearing whether or not the formation of the sewer improvement district will be conducive or beneficial to the public health and the Board gives, notice of an election to be held for the purpose of submitting the matter to the people of the district. If the electors approve the establishment of the Sewer Improvement District the Board of County Commissioners of the county so certify by their order and appoint the Board of Directors of the District Sections 876 and 877 provide respectively in relevant part: "The legal title to all property acquired under this Act shall immediately and by operation of law vest in such sewer improvement district in its corporate name and shall be held by such district in trust for, and is hereby dedicated and set apart to, the uses and purposes set forth in this Act. The Board of Directors of such district is hereby authorized to hold, use, acquire, manage, occupy and possess such property as herein provided." "The Board of Directors is hereby authorized . . . to sue, appear and defend in its corporate name, in person or by attorneys, in all courts, actions, suits or proceedings in the name of such sewer improvement district . . ." The Board of Directors of a Sewer Improvement District are granted authority in Section 876 to contract for the sale of the sewer system of the District to an adjoining city or town. Under Section 898.2, the Board of Directors of a County Sewer Improvement District, may ask the governing board of an adjacent city or town for a consolidation of the district sewerage system with the system of the city or town. Title 11 O.S. 271 [11-271] to 11 O.S. 281 [11-281] (1961), provide a method whereby all cities and towns where there is maintained and operated a system of public water works, the mayor and council or board of trustees have the power to establish sewer systems. Section 11 O.S. 273 [11-273] provides a method of protest by persons owning more than one-half the land in a city sewer district. Section 274 outlines a procedure for district sewer to be built by the governing board of a city or town upon petition of more than fifty (50) per cent of the property owners. Section 276 to 281 provide for condemning private property for sewer systems, tax assessments and bonds for payment for sewers, collection of delinquent installments, etc. 11 O.S. 282 [11-282] (1961), allows a city or town to jointly participate in sewer systems as follows: "The governing board of any city or town in the State of Oklahoma is hereby authorized, whenever said board deems it necessary or convenient for the better drainage or sewerage of all or any portion of said municipality, to participate jointly with any drainage district, county or counties, municipality or municipalities, or with the United States Government or any agency thereof, or with more than one of the foregoing entities, for the purpose of the establishment, acquisition, construction, maintenance, repair, and/or operation of a drainage structure or drainage distribution system within or without the corporate limits of a municipality. . . ." 11 O.S. 270.1 [11-270.1] to 11 O.S. 270.29 [11-270.29] [11-270.29], provide a supplemental or alternative method whereby cities and town may construct sewer systems. In Section 270.1, we direct your attention to the following language: "The governing body of any incorporated city or town is hereby empowered to: 1. Authorize the construction of mains, submains and laterals for sewers, also ditches, drains, conduits, pipe lines and channels for sanitary and drainage purposes, or either or both thereof . . . in, under, over or through any street, or any land of the incorporated city or town or any right-of-way granted or obtained for such purpose, either within or without the limits of the incorporated city or town. 2. . . . 3. Join with other cities or towns or any improvement district or sanitary district or the state, or any of its departments or agencies, the federal government or any of its departments, agencies or instrumentalities, as may be provided by law, in the construction, operation or maintenance of improvements authorized by this Act." 11 O.S. 642 [11-642] and 11 O.S. 643 [11-643] (1961) respectively, provide in part: "The mayor and council shall have the care, management and control of the city and its finances, and shall have power to enact, ordain, alter, modify or repeal any and all ordinances not repugnant to the laws of the United States and the Constitution and laws of this State, as they shall deem expedient and for the good government of the city. . . ." "The council shall have power, in addition to the other powers granted by law, to open, straighten, widen, extend and otherwise improve streets, avenues, lanes and alleys, and to make sidewalks and build bridges, culverts and sewers within the city . . . ." (Emphasis added) From careful analysis of all the above statutes, we are forced to the following conclusions: (1) The governing board of a city or town has jurisdiction over all the territory within the limits of such municipal corporation; (2) A county Sewer Improvement District once formed becomes a corporate entity; (3) A county Sewer Improvement District can sell its sewer system to or consolidate its system with the system of an adjacent city or town; (4) A city or town can participate jointly in sewer systems with other entities such as counties or county Sewer Improvement Districts and can own sewer facilities both within or without such city or town; (5) Neither corporate entity, a city or town or a county Sewer Improvement District, can include within its jurisdiction any of the property within the territorial limits of the other. (6) Thus, there appears to be no authority for a county Sewer Improvement District, created under 19 O.S. 871 [19-871] to 19 O.S. 898.7 [19-898.7] (1961), to include within its corporate boundaries any portion of the land within the territorial limits of an incorporated city or town. It is therefore the opinion of the Attorney General your question should be answered in the negative. (W. J. Monroe)