Stoltze v. Sheridan

Bruce, J. This is an appeal from an order vacating and setting •aside a temporary injunction restraining proceedings for the creation of a sewer under the provisions of chapter 23, Bev. Codes 1905, as amended by chapter 93 of the Laws of 1907 and chapter 124 of the Laws of 1911. The first and main question which is to be decided in this case is whether a drainage or sewerage system may be created under §§ 1818 and 1821, Bev. Codes 1905, which system the petition alleges “is for the best interests of the city (of Mohall) and a benefit to the health, convenience, and welfare of the people of said city,” and which the record discloses is for the purpose of providing a drain which shall — 198 — take care of the sewage and house drainage of the city as well as its surface waters, without a compliance with the provisions of § 1821, which provides that “if among the leading purposes of the proposed drain are benefits to the health, convenience, or welfare of the people of any city or other .municipality, the petition shall be signed by a sufficient number of the citizens of such municipality or municipalities to satisfy the board of drain commissioners that there is a public demand for such drain.” This, we believe, is a correct statement of the main issue, for although it is contended that the drain is a general agricultural health drain, and passes through agricultural lands as well as city property, it is quite clear from the record that its source is in the city as well as its real field of utility, and that its extension into the agricultural lands is for the purpose of an outlet merely. Even, however, if it were partly agricultural and partly urban, we do not think that the issues would be changed, and we are of the opinion that “a petition signed by a sufficient number of the citizens of the municipality to satisfy the board of drain commissioners that there is a demand for the drain” would still have been necessary, and that such petition was not obtained in the case before us. Section 1818, Rev. Codes 1905, provides that “water courses, ditches and drains for the drainage of sloughs and other low lands may be established, constructed and maintained in the several counties of this state whenever the same shall be conducive to the public health, convenience or welfare under the provisions of this chapter. The word ‘drain’ when used in this chapter shall be deemed to include any natural watercourse opened, or proposed to be opened, and improved for the purpose of drainage and any artificial drains constructed for such purpose.” Section 1821 provides that “a petition for the construction of a drain may be made in writing to the board of drain commissioners. If among the leading purposes of the proposed drain are benefits to the health, convenience or welfare of the people of any city or other municipality, the petition shall be signed by a sufficient number of the citizens of such municipality or municipalities, to satisfy the board of drain commissioners that there is a public demand for such drain. If the chief purpose of such drain is the drainage of agricultural, meadow, grazing or other lands, the petition shall be signed by at least — 199 — six or more freeholders whose property shall be affected by the proposed drain.” Section 2771, Eev. Codes 1905, provides among other things that “the city council shall have power to establish and maintain at any time a general system of sewerage for the city, in such manner and under such regulations as the city council shall deem expedient, and to alter or change the same from time to time as the council shall deem proper; provided; that no action shall be taken for the establishment of such system of sewerage except upon the affirmative vote of two-thirds of the members of the city council,” etc. Section 2772 provides that “any city shall have power to create sewer, paving or water-main districts within the limits of such city, which shall be consecutively numbered.” Section 2773 provides that “such sewer districts shall be of such size and form as the city council, after consultation with the city engineer, shall decide most practicable for the purpose of the drainage of such portion of such city as may be included in the respective districts as established by the city council.” It is quite clear to us that §§ 1818 and 1821 were enacted for the drainage of sloughs and other lowlands, and under the general police power of the state, and that §§ 2771, 2772, and 2773 were enacted to meet the express problems of cities and the added problem of house sewage, which is not to be found in the country. It is well established that where general words follow a specific enumeration, that these general words must be construed to apply to a class similar to that enumerated. Lewis’s Sutherland, Stat. Constr. 2d ed. §§ 422 — 441. The “other lowlands,” therefore, which are spoken of in § 1818, must mean lands which, even though found within the limits of incorporated cities, are in the nature of sloughs and as such injurious-to the general health of the community. Sections 1818 and 1821, Eev. Codes 1905, in fact the whole of chapter '23, Eev. Codes 1905, relate merely to what may be termed water or surface-water drains, and have no relation whatever to a sewage and to a sewerage system, such as is generally maintained in cities and is evidently contemplated in the case at bar. There are cases where sloughs and swamps are found within the limits of incorporated cities, and § 1821 was enacted to cover such cases, but the act is limited by § 1818 to “the drainage of sloughs and other lowlands” and of sloughs and other lowlands alone. — 200 — However this may be, it is quite clear that the drainage project in the case at bar was primarily, if not solely, for the benefit of the people of the city, and that in no sense could it be held that its chief and only purpose was for the “drainage of agricultural, meadow, grazing, or other lands.” Being for the benefit, health, convenience, and welfare of the city, the petition was, in any view of the case and of the statutes, required to be signed by a sufficient number of the citizens of such municipality to satisfy the board of drain commissioners that there was a public demand for the drain. See § 1821. In the case at bar the petition was signed by only ten, or at the most twenty, persons, while the number of property owners of the city amounted to two hundred and twenty-three persons. This was not a sufficient showing of a public demand. The most limited definition of the term “public” that we can find is in the case of State v. Luce, 9 Houst. (Del.) 396, 32 Atl. 1076, 1077; 6 Words & Phrases, 5771. In this case the court says: “The term 'public’ does not mean all the people, nor most of the people, nor very many of the people, of a place, but so many of them as contradistinguishes them from a few.” See 6 Words & Phrases, 5771. Even if we take the most limited construction, we think that no one would contend that ten or twenty is not a “few” as compared with two hundred and twenty-three. There can be no question that the drain or sewer was intended to provide for the house sewage as well as for the surface or storm waters of the city. This is conclusively shown by the surveyor’s report, which, among the estimated items of cost, includes one septic tank, fifteen catch-basin, twelve manholes, one outfall abutment, and several thousand feet of drainpipe, and which throughout speaks of the system as a sewer, rather than a drainage, system. It is also clear that whether primarily and principally a house sewer or not, its use is mainly confined to the limits of the city. It is true that it extends outside of the limits, but, to use the language of the engineer himself, “the benefits will be to the entire city of Hohall, North Dakota, and may include the southwest quarter and the south half of the southeast quarter of section 13, and the north half of the northwest quarter and the north half of the northeast quarter of section 24, twp. 161, range 84. The benefits will be particularly to the — 201 — health, convenience, and welfare of the residents of Mohall, North DakotaThere is in fact in the petition no suggestion or claim that the system is for the benefit of any but the residents of the city, nor any request that it shall be made to benefit any others. So, too, the petition is signed by residents of the city only. See State ex rel. Bale v. Morrison, 24 N. D. 568, 140 N. W. 707. It is clear that in any event and in any view of the case the requirements of § 1821 should have been met and complied with, and it is equally clear that this was not done. But it is contended that the action was premature. It is claimed that it was begun before the hearing under § 1821 could be had, and before the board could determine whether or not a public demand existed for the drain. It is claimed that under the statute the drain board determines whether or not a public demand exists, and that such determination, in the absence of an appeal, should be final. We do not think that this is the case. It appears to be quite clear, indeed, that before-any steps are taken whatsoever, the board of drain commissioners must be satisfied that there is the “public demand” which is mentioned in and which is made a prerequisite by '§ 1821. Before this matter has been determined, the board, under the statute, has no right to cause the survey to be made, nor to take any steps in the matter. This determination, and a petition on which the determination may be legally had, is, we believe, jurisdictional. It is true that the concluding portion of § 1821 provides that “all persons whose land may be affected by any such drain may appear before the board of drain commissioners and fully express their opinions upon the matter pertaining thereto.” We believe, however, that this hearing is contemplated after the filing of the proper petition, and the determining of the public demand, and the’making of the survey, and not before, and relates to the benefits and the necessity, and not to the preliminary and jurisdictional “public demand.” We are also cognizant of § 1822, which provides that “if upon such examination and survey, or upon the trial in the district court it shall appear that there was not sufficient cause for making such petition, or that the proposed drain would cost more than the amount of benefit to be derived therefrom, the board of drain commissioners shall deny the petition, and the petitioners shall be jointly and severally liable to such board for all costs and expenses — 202 — incurred in the proceedings to be recovered by such board by action.” We believe, however, that this clause refers to the value and necessity of the drain, and not to the jurisdictional element of a public demand therefor. We are of the opinion that the trial court erred in dissolving the temporary injunction, and that all further proceedings under the invalid petition should be enjoined and the injunction reinstated. It is so ordered. The costs of the appeal will be borne by the defendant and respondent.