80 P.2d 419 | Wyo. | 1938
This is an action brought by taxpayers of the City of Rock Springs to declare invalid certain bonds, in the sum of $75,000, proposed to be issued by the said city. The court sustained a demurrer to the petition, and plaintiffs refusing to plead further, judgment was entered for defendants, and plaintiffs have appealed. It appears that on October 13, 1937, the Mayor and City Council of Rock Springs passed and approved ordinance No. 537 to the effect that a special bond election should be held in the city in order that the electors might determine whether or not the city should be authorized to borrow money and issue its Coupon bonds in the sum of $75,000, for the purpose of making improvements in "Storm Ditch" and the channel of Bitter Creek, to prevent and dispose of flood water. Notice was directed to be duly published. This notice, duly published, in so far as material herein, is as follows: *227
"By virtue of Ordinance No. 537, passed and approved and published by the Mayor and Council of the City of Rock Springs, Wyoming, on Wednesday, October 13th, A.D. 1937, there will be submitted to the electors of the City of Rock Springs, at a special bond election to be held on Tuesday, November 2, A.D. 1937, the proposition whether or not the City of Rock Springs, in the State of Wyoming, and the Mayor and Council of the City of Rock Springs, Wyoming, shall be authorized to borrow money, and issue the coupon bonds of said City, in the amount of Seventy-Five Thousand Dollars ($75,000.00), and not exceeding, at any one time, when computed together with outstanding general bonds 2% of the assessed valuation of said city, for the purpose of making improvements in "Storm Ditch" and channel of "Bitter Creek" to prevent flood damage and for the purpose of making improvements to dispose of flood waters within the City of Rock Springs."
The ballots submitted to the electors substantially embodied the provisions in the foregoing notice.
The election was duly had pursuant to notice, and the bonds were duly authorized to be issued by a large majority, both of the property owners as well as of the non-property owners. It appears that on December 6, 1937, the City of Rock Springs accepted the bid of the Stockgrowers National Bank for the purchase of the bonds in the amount above mentioned, and intends to issue the bonds to the bank unless prevented by the court from doing so; that the assessed valuation of the city is the sum of $4,943,676; that the present bonded indebtedness of the city already is in the sum of $192,000, some of the bonds having been issued for sewer purposes.
Section 5 of Article 16 of the Constitution provides that:
"No city, town or village, or any sub-division thereof, or any sub-division of any county of the state of Wyoming, shall, in any manner, create any indebtedness *228 exceeding 2 per centum on the assessed value of the taxable property therein; provided, however, that any city, town or village may be authorized to create an additional indebtedness, not exceeding 4 per centum on the assessed value of the taxable property therein as shown by the last preceding general assessment, for the purpose of building sewerage therein."
Section 22-1601, Rev. St. 1931, provides that each incorporated city and town in the state shall have power to establish, construct, purchase, extend, maintain and regulate a system of sewerage. Section 22-1605, Rev. St. 1931, provides that any incorporated city or town is authorized to borrow money and issue coupon bonds in any amount not exceeding the limitation provided in Section 22-1603 for the purpose or purposes enumerated in Section 22-1601. Section 22-1603 provides that no city or town shall in any manner create any indebtedness exceeding two per centum of the taxable property therein, except an additional amount not exceeding four per centum of the assessed valuation of the property therein, for the purpose of building and construction of sewerage systems.
The question before us is as to whether or not the bonds proposed to be issued herein are for the purpose of constructing a system of "sewerage," within the contemplation of the constitution and statute above mentioned. If so, the proposed bonds will be within the limit of indebtedness prescribed in such cases. The term "sewerage" is usually applied to a system of sewers, and "sewage" to the matter carried off, although these terms are frequently used interchangeably. McQuillan, Municipal Corporations (2d ed.) Sec. 1640. So we must inquire whether the proposed work constitutes a "sewer" or "sewers." It is the contention of appellants that the proposed work constitutes "storm sewers"; that these are not "sewers" within the meaning of the constitution and statutes, but that the term "sewer" properly construed refers only to *229
sanitary sewers. It is true that at times, under special circumstances, the term "storm sewer" — which, in other words is a drain — has been held not to be included in the term "sewer." Roebling v. City of Cincinnati, 102 Ohio St. 460, 132 N.E. 60; City of Sand Springs v. Hohl,
"The term is more commonly used for systems conveying sewage but is also applied to `storm sewers' intended to convey away storm water, surface water, street wash and other drainage. * * * Sewers are primary essentials to community sanitation, though storm sewers are of less importance and must be economically justified. Land otherwise occupied by natural water courses may be reclaimed by storm sewers. Combined sewers are generally economical wherever storm sewers are justified and where the sewage can be disposed of through dilution."
In the New International Encyclopaedia, 2d Ed., Vol. 20, p. 757 (1916) it is stated: *230
"In most of the larger cities provisions for surface drainage preceded the introduction of sanitary sewers. Convenience gradually led to the use of these surface or storm sewers for the disposal of liquid and then of solid house wastes, the connections for the latter purpose often being surreptitious at first. As public water supplies were introduced and the per capita water consumption greatly increased, the disposal of the water thus brought into the houses often became even more serious a matter than the removal of surface and ground drainage. This led to the construction of sewers on the combined plan."
It seems accordingly, that the term "sewer" as meaning a storm sewer was in general use earlier than the meaning of sanitary sewer. In the case of Aldrich v. Payne,
"Our attention is called to the statute giving the town authority to grade and repair streets and alleys and to construct sewers, and requiring that it shall defray the expenses of the same out of the general funds of such city or town. Code of 1873, Section 465. This refers to the building of sewers along the public streets and alleys for the purpose of carrying off the surface water and filth. The right to so construct sewers is usually regarded as incident to the power of maintaining the streets. * * * The word `sewer' does not seem to have a meaning essentially differing from `ditch' or `drain.' Webster defines it as `a drain or passage to carry off water and filth underground; the subterraneous channels, particularly in cities.' It has also been applied to an underground structure for conducting the water of a natural stream. * * * In Clay v. City of Grand Rapids,
In the case of Clay v. Grand Rapids,
"There is nothing in the nature of a sewer which excludes it from being made, in whole or in part, out of a natural water-way. Such is a very common practice, and the sewerage, under the ancient system of the English sewer commissioners, was chiefly in natural streams, which were variously improved or confined for the purpose. Neither is sewerage necessarily, if it is generally, intended merely as an escape for filthy water. It includes all kinds of drainage and water discharge."
In the case of City of Valparaiso v. Parker,
"Formerly the word sewer was defined to be a fresh water trench artificially made, encompassed with banks on both sides to carry surface water into the sea. Callis on Sewers, 80; 1 Crabb, Real Prop., Sec. 113; Woolrych's Law of Sewers, p. 1. Webster defines `sewer': `A drain or passage to carry off water and filth under ground.' For sewerage or sewage the definition given is: `The general drainage of a city or town by means of sewers.' For drain he gives: `A trench; a water course; a sewer; a sink.' In Bennett v. New Bedford,
In the case of Pioneer Real Estate Company v. City of Portland,
"The authority conferred upon the city of Portland to construct a sewerage system for the purpose of protecting the public health carries with it the essential power to build a system that will effectuate the purpose contemplated. In support of its action the city has adduced much evidence from civil engineers and others to the effect that, in order for the sewer to carry the sewage from the district described in the ordinance, it is necessary that the flood waters of the Willamette river be excluded therefrom; further, that the pumping plant is an essential, as is also the fill. It plainly appears from the record that the city of Portland is face to face with the problem of draining the sewage from a locality affected by backwater, seeping waters, and flood waters at each recurring freshet. The city is confronted with the indisputable fact that it is impossible effectually to sewer the property embraced within the ordinance without excluding the waters therefrom."
See also Barton v. Drainage District,
None of the foregoing cases are exactly in point herein. But sufficient appears so that we are unable to say that the term "sewer" does not include a storm sewer as well as a sanitary sewer, unless we find something in the constitution or the statutes of this state which would limit the term to sanitary sewers. But we find nothing of the kind. The statute authorizing the construction of a system of sewerage and permitting the issuance of bonds for that purpose was originally adopted in 1890, shortly after the adoption of the constitution, and presumably therefore the term "sewerage" used therein was intended to mean the same as it means in the constitution. The term "storm sewer" is not and never has been used in the constitution or statutes of this state. The term "drain" — probably synonymous, as above stated, with "storm sewer" — did not appear in any of the statutes of this state until 1909. In Chapter 51, Section 1, S.L. 1909, relating to cities of the first class, the statute speaks of drains or sewers, apparently considering these terms as synonymous. In Section 29 of the same act, however, reference is made to the repair and use of sewersand drains. Chapter 120 of the Session Laws of 1915 provided that the term "drains" or "drainage" should not include sanitary sewers. But we should primarily examine the statutes existing at the time of the adoption of the constitution. We have done so. The various special charters of cities and towns of this state, and the statutes relating to cities and towns incorporated under the general laws of this state, all provided that these cities and towns should have power to construct "sewers." The term "drain" (or "storm sewer") does not appear therein. This seems to indicate that at that time the term "sewer" included a storm sewer as well as a sanitary sewer. And bearing in mind that storm sewers may subserve the purposes of health as well as sanitary sewers, we think that under the foregoing *234 authorities we are constrained to hold that they were included within the constitutional and statutory provisions above mentioned, and that the general bonds of the city may be issued therefor, as is proposed to be done in the instant case.
It is alleged in the petition and admitted by the demurrer, "that the notice to the electors of Rock Springs, and the ballots prepared by the city clerk and used in said election, contained the statement that said bonds to be voted on, when computed with the outstanding general bonds, would not exceed at any one time 2% of the assessed valuation of said city, which said statement was misleading to the voters, due to the fact that when computed together with outstanding general bonds, said bonds would exceed 2% of the assessed valuation of said city." That point presents a much more difficult question than the one already considered. The total bonded indebtedness of the city at that time was, according to the petition, nearly 4% of the assessed valuation and will be approximately 5 1/2% when computed together with the proposed bonds, so that if the foregoing statement was intended to mean what it apparently means, it is hard to understand how such error crept in. And if we were satisfied that the electors of the city were actually misled, our duty would be clear to declare the bonds invalid. Counsel for the city contends that a statement of the total indebtedness is not required and that the bonds cannot accordingly be held to be invalid on account of the error. It is correct that the statute does not require such statement. Section 22-1605 provides that "the proposition so submitted shall specify the amount of bonds proposed to be issued, the rate of interest, and the purpose for which it is proposed to issue the bonds. At any such election the official ballot shall contain the words: `For ____ Bonds,' and `Against ____ Bonds.'" The notice and the ballots in the case at bar complied *235
with these provisions. We are not prepared to hold that statements contained in a proposition, which are not required by the statute, will always be considered immaterial. A number of cases hold that if the proposition contains conditions or terms (not required by statute) under which bonds are to be issued, they cannot be issued contrary thereto, and if these terms or conditions are invalid, the bonds are void. Note 93 A.L.R. 362; Mann v. City of Artesia,
It has been laid down as a general rule that the question submitted to the people for their vote, and the notice thereof must not be misleading. McQuillan, supra, sections 2356-57; Neacy v. Milwaukee,
That is the rule which, we think, is applicable under circumstances disclosed in the case at bar. The question then remains whether we are authorized to presume that the election was affected by the error herein, or whether the burden in that respect is on the plaintiffs — the appellants here. It is said in 20 C.J. 238 that "the presumption is in favor of the legality of the election." McQuillan, supra, sec. 2361, states that "all presumptions are in favor of the validity of the election, and as said above, it will not be vitiated by mere irregularities." *237
In McKinnon v. High School District,
It appears in State v. Salt Lake City,
"But if we should assume that the statement was in the nature of an inducement to the voters of which they may complain, then it constitutes what is termed an irregularity. It certainly cannot be said to be more than this. And as we have seen, it is not a matter that could have been submitted to a vote or voted upon at the election. Nor was it an irregularity in the proceedings, either before or at the election. It, therefore, was a matter which, if it had any effect at all, must be considered in the nature of an inducement to the voters to vote for the bonds. But there is no allegation or intimation even that any of the voters were in fact induced to vote for the bonds that otherwise would not have voted for them. Can an election be declared illegal because of some irregularity which it is not claimed affected the result thereof? The mere allegation that an irregularity occurred is not sufficient to authorize a court to declare the election illegal. If the matter complained of were one which in a sense were jurisdictional — that is, which went to the right of holding the election, or to its legality — the case might be different."
The foregoing was quoted with approval also in Bay County v. Hand,
Dillon, supra, Section 213, states the general proposition that "inducements in the way of statements and representations made to influence a voter, although false and fraudulent, will not invalidate the election, if it does not appear that by force and fraud the voter was compelled to vote in a way he did not desire to vote." False statements in an ordinance were recently considered by the Supreme Court of Colorado in the case of McNichols v. Denver, (Colo.)
"Neither do we believe there is merit in plaintiff in error's contention that the election is void because of *239 alleged false inducements held out to the electorate. This objection is based upon a statement in the preamble of the election ordinance of 1935, detailing the alleged benefits which would result from the establishment of an air corps technical school in the vicinity of Denver, to the effect that the federal government would invest approximately $6,000,000 on the project whereas in fact, it is pointed out the enabling act of Congress appropriates only $2,275,000."
In several cases, courts have considered the statements of officials in connection with an election, and it has been held that "misrepresentations made during a campaign by public officials or others will not vitiate an election." West Missouri Power Company v. Washington,
The petition in the case at bar fails to allege that any elector of the city was actually misled. For aught that appears every voter may have known the actual amount of existing indebtedness of the city, and may have been fully aware that the statement in that connection in the notice and the ballot was a mistake.
It may be noted that none of the authorities here cited deal directly with a situation such as is presented in this case. All that we can do is to reason by analogy. Bearing in mind the fact that voters generally are apt to give but scant attention to the details of a notice, riveting their attention on the main object thereof, and further bearing in mind that at least some of the *240 property owners actually and vitally interested in the amount of bonds already outstanding, would be apt to attempt to verify the statement in the notice by the records of the municipality, readily accessible, and would then call attention to the falsity of the notice, to treat the error herein as prima facie not affecting the result is, we think, more nearly in accord with the actual facts in life than a contrary course, and that fact, after all, cannot be overlooked. Hence the authorities cited which deal with irregularities generally, furnish, we think, a closer line of reasoning by analogy than any other, and we have, accordingly, thought best to defer to the conclusions reached thereby, though not without considerable reluctance. We think that when a mere irregularity appears, the presumption is and should be that the election is valid. Hence something more should appear, we think, in a case of this kind than a mere tendency of the notice or ballot to mislead. A great many irregularities might have that tendency. Something more should appear which would at least cast a doubt on the validity of the presumption above mentioned. How much more, we need not determine. We think, accordingly that the petition fails to state facts sufficient to constitute a cause of action, and that the demurrer was properly sustained. The judgment of the trial court, is, therefore, affirmed.
Affirmed.
RINER and KIMBALL, J.J., concur. *241