170 Mo. 439 | Mo. | 1902
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 1.4 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.
In condensed form the controversy is this: Formerly the charter of St. Louis provided for: (1) public sewers, to be constructed “•along the principal course 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 sew
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 tbe 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*444 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 district or territory, and paid for by special taxes assessed upon all the property in said joint sewer district.
“Private sewers are defined to be these 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 asesssed 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 unin-cluded 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*445 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 canse the total cost thereof to he 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 taxbill against each lot or parcel of ground in the joint sewer district, giving the name of the owner thereof, in favor of the contractor, which shall be collected and paid as provided in this article; provided, however, that if the joint district sewer will drain territory part of which lies outside of the city limits, the city of St. Louis shall pay from the public revenue part of the cost of the joint district sewer in the proportion that the area of that part of the territory drained by the joint district sewer which lies outside of the city limits bears to the whole area drained; and the remainder of the cost of the joint district sewer shall be paid for as hereinbefore provided. When the extent and character of a joint district sewer is such as, in the opinion of the board of public improvements, renders its division into sections advisable, an ordinance directing and authorizing the construction of one or more sections may be passed, and when the work in any such section is fully completed, special taxbillsto the amount of the cost of such section shall be issued as herein provided. Joint district sewers shall be constructed of such material and of such dimensions as may be considered necessary and expedient by the board of public 'improvements, and authorized by ordinance, and they may be connected with other sewers of any class or with some course of drainage.”
The amendments as to district and private sewers
Under these amendments the municipal assembly of St. Lonis adopted ordinances numbered 20545 and 20546. The first established Arsenal Street Joint Sewer District, by metes and bounds. The second authorized the construction of a joint-district sewer, within said sewer district, to-wit, on Arsenal street, from the Arsenal street sewer at the intersection of Arsenal street and Ninth street, westwardly to Illinois avenue, intercepting at the latter place the Arsenal street sewer. This ordinance contained an appropriation of two thousand dollars to pay for the portion of the work that would be chargeable against the property of the city in the joint district.
The joint sewer district established by the first ordinance, was sixteen blocks from north to south and about twenty blocks from east to west. The length of the joint district sewer authorized by the second ordinance was about ten blocks. A large number of previously constructed district sewers are embraced in the newly-created joint sewer district. • The plaintiff owns two lots within the joint sewer district, one located eleven and the other eight blocks from the joint district sewer. Both of these houses have connection with district sewers, and those district sewers connect with the public sewer at'the intersection of Wyoming street and Illinois avenue. There is now a public sewer, called the Arsenal street sewer, which runs east on Arsenal to Illinois avenue, then south on Illinois avenue one block to Wyoming street, then east on Wyoming street, ten blocks, to Ninth street, then north on Ninth street, one block, to Arsenal street, and then east on Arsenal, street to the levee. It is this sewer with which the district sewers that drain plaintiff’s houses connect.
The public Arsenal street sewer is insufficient to carry off the sewage and drainage that' comes from the several district sewers that empty into it. Especially is this true as to the portions thereof on Illinois ave
The purpose of this joint district sewer is to remedy this condition by connecting the public sewer at Arsenal and Illinois streets with the public sewer at Ninth and Arsenal streets. East of Ninth street the public sewer is sufficient to take care of all the sewage and drainage that is now, or that, after the joint-district sewer is constructed, will be, drained into it. By constructing this joint district sewer on Arsenal street, the present overtaxing and consequent overflowing of the public sewer on Illinois avenue, Wyoming and Ninth streets, will be relieved, and that sewer will then be sufficient to take care of and carry off all the sewage and drainage that drains into it from the district sewers, among them those with which the plaintiff’s houses are connected. And in addition to this if, in times of extraordinary freshets, those parts of the public sewers can not carry off the waters, the conditions, as to those parts, will be relieved by the excessive waters being forced north on Illinois street from Wyoming street to Arsenal street, and there emptying into this joint district sewer and being carried off by it. So that from every point of view the plaintiff’s property will be benefited by the construction of this joint-district sewer. The benefit will not be as direct as that which will be done to property located on a lower level, but it will be benefited relatively as much by this joint district sewer as it is by the district sewers, with which it directly connects.
I.
The constitutionality of charter provisions providing for the construction of streets, alleys, or sewers, and charging the cost of such construction proportionately upon all property abutting the improvement or within the established benefit district, either according to the front-foot rule or according to the area rule, is no longer open to debate. All such questions have been settled by the decisions of this court and those of the Supreme Court of the United States. [St. Louis v. Oeters, 36 Mo. 456; Kansas City v. Ridenour, 84 Mo. 253; St. Joseph v. Owen, 110 Mo. 445; Heman v. Allen, 156 Mo. 534; Heman v. Schulte, 166 Mo. 409; Barber Asphalt Pav. Co. v. French, 158 Mo. 534; Hill v. Swingley, 159 Mo. 45; Schumate v. Heman, 181 U. S. 402; French v. Barber Asphalt Paving Co., 181 U. S. 324.]
Therefore, the only question open to discussion in this case is whether the city in this case was acting-within the scope of its charter power.
At the outset it is proper to say that the question of whether this sewer would or would not have been a public sewer within the purview of the old charter, is wholly immaterial. The same power that made the old charter and provided therein for public, district and private sewers and how each should be paid for, abolished the old charter provisions and substituted the present charter provision providing for public, district, joint district, and private sewers, and how they should be paid for. The power to enact laws always
The people of St. Louis have acted within their powers, and it only remains to see whether the officers and agents of the people acted within the scope of the powers conferred upon them by the people, when they adopted the ordinances in question here.
The evidence in this case is not .sufficient to show whether a sewer on Arsenal street from Illinois street to Ninth street, would or would not have been a public sewer under the old charter; that is, it is not sufficient to show whether such a sewer constructed between those termini would be along one of the principal courses of drainage or not. But as the sewer to the east and west of such termini was a public sewer constructed under the old charter, it may be assumed for the purposes of this case that the sewer provided by these ordinances would have been a public sewer under the old charter. This fact, however, does not make it a public sewer under the amended charter of 1901, nor does such fact have any tendency to impair the right of
It is certain that this sewer is not a public sewer within the meaning of the amended charter. It is not a sewer heretofore constructed or acquired under authority of an ordinance and paid for wholly out of general revenue, and it is not a sewer deemed expedient by the board of public improvements and to be constructed without creating a sewer, district or joint sewer district, and therefore it does not fall within the definition of a public sewer as prescribed by the new charter.
It is equally certain that it is not a district sewer within the meaning of the new charter, nor is it a private sewer. This process of reasoning by exclusion, leaves it only possible for this sewer to be a joint district sewer. That is, a sewer constructed or acquired under the authority of ordinances, uniting one or more districts or unorganized territory, for the purpose of providing main outlets or intercepting sewers for the joint benefit of such districts or territory and paid for by special taxes assessed upon all property in said joint sewer district. Such is the definition of a joint district sewer in the amended charter, and that definition fits this case. For this sewer is made by an ordinance uniting more than one district and providing a main outlet or intercepting sewer for the joint benefit of such districts, and is to be paid for by special taxes assessed upon all property in said joint sewer district. Whatever else, therefore, it might properly have been denominated under any other law, it is strictly a joint district sewer within the meaning of the amended charter. The evidence shows that the plaintiff’s lots will be benefited by the construction of this sewer. Not directly as much, perhaps, as lots located on a lower level, but relatively as much as they are by district sewers. The plaintiff’s lots are located on high ground, so that they are not affected by the overflow •of the sewers, like the lots located on the lower ground. The plaintiff is the dominant owner, while
But aside from this, the question of whether the plaintiff’s lots would or would not be benefited by the construction of this sewer, is a legislative and not a judicial question, and the municipal legislature adjudged that they would be benefited and fixed the ratio of such benefit, when it established the joint sewer district, and as there is no question of fraud or oppression of the municipal assembly in so passing such ordinance (even if such allegation would convert the question into a judicial one, as to which it is not necessary now to decide), such judgment of the assembly is conclusive. [City of St. Joseph v. Farrell, 106 Mo. 437; Heman v. Allen, 156 Mo. 534; Schumate v. Heman, 181 U. S. 402; Heman v. Schulte, 166 Mo. 409; Hill v. Swingley, 159 Mo. 45; Barber Asphalt Co. v. French,
For these reasons the officers and agents of the city acted within the powers conferred upon them by the charter in the passage of the ordinances in question, and in ordering the construction of this joint district sewer, and therefore the judgment of the circuit court in favor of the defendants was right, and it is affirmed.