Whitsett v. City of Carthage

WOODSON, J. — This suit was instituted in the circuit court of Jasper County by the plaintiff to enjoin the city of Carthage from constructing a main sewer therein in conformity to certain ordinances duly enacted by said city. The trial resulted in a decree in favor of the defendant, denying the injunction, and after taking proper steps the plaintiffs duly appealed the cause to the Springfield Court of Appeals. Upon motion the cause was properly transferred by that court to this. The construction of the sewer is resisted principally upon the grounds that the ordinances ordering it are unreasonable and oppressive. This calls for a statement of the substance of the evidence. The facts of the case are briefly these: — 275 — On the first Tuesday in April, 1912, the defendant held an election for the purpose of adopting the provisions of sections 9281 to 9298, inclusive, Revised Statutes 1909, relating to the construction of sewers in cities of the third class, and by virtue of said election, said sections were adopted. On the 11th day of August, 1913, the defendant passed Ordinance No. 102, dividing the territory of said •city into sewer districts, as contemplated by the provisions of said sections 9281 to 9298, inclusive. On the same day, namely, August 11, 1913, the defendant passed Ordinance No. 103, providing for the construction of a main trunk sewer, to be paid for by special tax bills on the lands belonging to plaintiffs and other lands. • Pursuant thereto, the defendant was about to advertise for bids for the construction of said sewer, when this suit was commenced, June 23, 1915. The plaintiffs are owners of about 160 acres of land against which the defendant proposes to issue special tax bills to pay for the construction of said sewer. . The plaintiffs’ evidence tended to prove that the lands belonging to plaintiffs are occupied and used exclusively as farm lands and for truck gardening, etc.; that they are not held for the purpose of being platted and sold as town lots; that they are not in demand for urban purposes; that the growth of the city in the past twenty-five years has not been such as to indicate that they will, within any reasonable length of time, be in demand for urban uses. The lands of all the plaintiffs, except the Block forty-acre tract, are in the southwest quarter of section Nine, Township Twenty-eight, Range Thirty-one. The Block forty is the northwest quarter of the northwest quarter of said Section- Nine. The southwest quarter of Section Nine is the extreme southwest' portion of the city. While one ten-acre tract in the north-central portion thereof was, many years ago, platted into town lots, it was a failure as a — 276 — city addition. No streets or alleys have ever been opened or improved therein, and it is occupied as acreage property. None of the remainder of said quarter section has ever been platted. The city owns the municipal light plant and waterworks. No portion of the lands belonging to the plaintiffs is provided with electric light or water service. The nearest light is located at the northeast corner of the southwest quarter of said Section Nine. The nearest water plug is located at the corner of Centennial Avenue and Forest Street, about four hundred feet east of the northeast corner of said quarter section. The policy of the city with reference to the extension of its water mains is that no extensions will he made unless the prospective consumption of water will produce an annual income of five per cent of the cost of the extension. There are only twelve families, living on said quarter section, and it would cost several thousand dollars to extend the water mains to all parts of the same, so that the sewers, if constructed, could not he used by any of the plaintiffs. In 1890, the population of the city was 7,981; in 1900, it was 9,416; in 1910, it was 9,483, and at the time of the trial of the case it was 9,211. About one-half of the unoccupied land within the city limits which is available for and adaptable to residence purposes, is within the proposed sewer district. The lands belonging to plaintiffs, in the southwest quarter of Section Nine, lie south of Centennial Avenue, and are one-fourth of a mile west of Garrison. The southwest quarter of Section Nine, in which all the lands of plaintiffs lie, except the Block forty, is one-fourth of a mile west of Garrison Avenue. A good portion of the eighty-acre tract extending from Garrison Avenue on the west to Grand Avenue on the east, and from Centennial Avenue on the north to Fairview Avenue on the south, has been platted and offered for sale for the last twenty-five years. The street car track, on which cars are run each way every half hour, runs through this tract, on Main Street from north to south, and along the — 277 — south side thereof on Fairview Avenue. A large portion of this territory was settled up twenty-five years ago. At the present time there are only thirty-sis dwelling houses on the north forty acres of that eighty-acre tract, and only nine dwellings on the south forty acres of said eighty-acre tract. On the north half of the eighty-acre tract immediately west of Garrison Avenue and south of Centennial Avenue there are only seventeen dwellings, and on the south half of the same -there are only nine dwelling houses. ■ There are only seventeen dwellings on the 160-acre tract immediately east of Grand Avenue and south of. Centennial Avenue. All of the above described tracts embracing one-half section of land are well adapted to urban purposes, and each and every one of them is closer to the center of population of Carthage than any portion of the. southwest quarter of said Section Nine. The evidence also tended to show that some- years ago the forty-acre tract immediately south of Fair-view Avenue and west of Hazel Avenue was platted into lots and sold at auction, both additions being on the street-car line, and that both additions have been abandoned as urban property, and divided up into acre property and used for farming purposes. That the system of sewer districts attached and made tributary to the main sewer in controversy contains about 826 acres, and that only about 26 acres the same have close water connection, and that the water mains would have to he extended before the remaining 800 acres could he benefited by the construction . of said sewer or by the construction of district sewers to connect therewith; and there is no intimation in the defendant’s evidence, or elsewhere in the record, that the city proposes or contemplates the construction of the necessary extension of its mains. In District 44 there are 87 acres and 5 houses, in District 35 there 68% acres.and 9 dwelling houses. In District 24 there are 140 acres and 24 residences. The — 278 — cost of the construction of the main sewer would be $36.60 per acre. The evidence shows that the lands belonging to plaintiffs are worth about $200 per acre, without improvements, in five-acre tracts. The evidence tending to show the facts regarding the lands in the southwest quarter of Section 9 is also applicable to the Block forty-acre tract, Carthage was incorporated under a special charter in 1873. At that time.the southwest quarter of Section Nine was not included within its limits. Subsequently the city attempted to extend its limits so as to include said territory, but no notice of the election held for that purpose seems to have been given. No provision is made by Ordinance No. 103 to construct laterals to connect the lands in controversy with the proposed sewer and in fact it does not seem to be the purpose of the city to do so. The evidence for the defendant tended to show that the city of Carthage is a city of the third class under-the laws of the State of Missouri. It has a population of approximately ten thousand inhabitants, and lies on a slope south of the banks of .Spring River. Its natural drainage is from the south to the north. The the distance from the river to the south bluff of Spring River in the city of Carthage varies from a mile to a few feet. At the east end of town the limestone bluff diminishes and disappears. Towards the west side the bluff comes almost to the river. The natural drainage of the town is in three areas: the central area, which is geographically very much smaller than the rest of it, but which includes the business portion of the city; the eastern area, which is made up of a long draw and its tributaries which drain the eastern portion of the city; and the western area, which covers probably half of the geographical area of the 'city, and is that territory which is tributary to a long draw extending from the southern part of the town in a northwesterly direction to a point outside of the corporate limits. — 279 — The central area has been sewered for a number of years. Recently a sewer was constructed in the eastern portion of the city and that part of the town has the sewerage which is necessary for the proper drainage of a healthful community. The western drainage area, which is described above, includes in its natural-drainage boundaries some of the best' residence sections' of the city, and the lack of sewerage has been a menace to the health of this .portion of the city, and an object of incessant agitation and interest on the part of many citizens of that part of the city. In that section there are school houses, churches, a hospital, and other public buildings which go to make up an important part of the community life. At the general municipal election in April, 1912, the city of Carthage duly adopted sections 9281 to 9298 inclusive, Revised Statutes 1909, and the result of said election on the proposition to adopt, was duly proclaim- • ed as provided by said section 9281. Thereafter, on the 11th day of August, 1913, the council passed ordinance No. 102 subdividing the unsewered territory of the city into sewer districts, numbered from 10 to 69, inclusive, there being at the time of the adoption of said laws, nine sewer districts supplied with sewers under the statutes operative prior to. said adoption. After the passage and approval of ordinance No. 102, and on the same date, the council passed ordinance No. 103 providing for and ordering the construction' of the trunk sewer here in question, declaring therein -that sewer districts numbered 17 to 44 inclusive were deemed to be benefited thereby, except district No. 20, which was found by the council not to be drainable into said trunk sewer, and, therefore, not benefited by the construction thereof. The council, further, by said ordinance No. 103, adopted the plans and specifications for said trunk sewer, and defined the out-boundary lines of said benefit territory, embracing therein sewer districts numbered 17 to 44 inclusive, except district No. 20. — 280 — The lands of defendants lie in districts 24, 35, and 44, and range in quantities from 4 to 50 acres, aggregating 138 acres. All said lands lie in the southwest quarter of section 9, township 28, range 31, except the block 40, which lies in the northwest quarter of the northwest quarter of said section 9. It is' not disputed that the lands lying within the sewer districts constituting the benefit territory, including the lands of all the appellants, occupy the same drainage, area which this trunk sewer has been designed to serve, and that none of said districts can have any other outlet than through this trunk sewer, except through parallel lines running to Spring River, which is more than a half mile distant from the point on the western boundary of the city, at which all said lines would have to leave the city limits. The sewer in question is a large trunk sewer commencing at a given point between districts 40 and 42,.pas-sing thence through the low grounds in the drainage area to a given point at the western boundary of the city, on the line separating districts 17' and 18, and thence, beyond the city limits, a distance of more than one-half mile to and into Spring River, in which said sewer is to discharge. This trunk sewer will presently serve by means of district or lateral sewers 3500 to 3600 people, residing in the various districts — more than one-third of the population of the city. Besides, there is included within the territory which said sewer is designed to serve, a hospital and other public buildings herein above mentioned. The above statement of the case is largely taken from the briefs of counsel for' both the plaintiffs and defendant, which are substantially correct. Sewer: Agricuiturai Lands. I. As shown by the statement of the case, the plaintiffs seek to enjoin the construction of the main sewer mentioned therein for the reason, principally, that the ordinance authorizing its construction is ununreasonable, unjust and oppressive, in that their lands, used for agricultural and garden purposes, through which a part of the sewer passes, and — 281 — which will have to hear a large portion of the cost of construction, will not be correspondingly benefited thereby, practically amounting to a confiscation of the same. This contention of plaintiffs is untenable. The evidence shows that the city of Carthage has a population of approximately ten thousand, and lies on the southern slope of the banks of Spring Eiver, the natural course of drainage — the slope being from south to north; the distance from bluff to the river varies from a few feet to a mile. At the east end of the town the bluff diminishes and disappears, while at the west end it is higher and almost extends to the river. The natural drainage of the city is divided by natural conditions into three areas, the eastern, central and western; the eastern is made up of a long draw and connecting depressions and tributaries; the central is separated by rising ground from the eastern and western areas, and is much smaller than either of the other two, but includes the business portion of the city; and the western, which embraces practically one-half of the entire area of the city, about 1600 acres, and is tributary to a long draw or depression extending from the southern part of the city in a southwesterly direction to a point outside of the corporate limits. The eastern and central areas have been properly sewered for drainage and sanitary purposes, but the western area is without sewers, and that portion of the city is dependent almost entirely upon vaults, basins and natural drainage; this has been a constant menace to the health of that portion of the city. About thirty-five hundred people reside in this area, and there are situate therein schools, churches and the city hospital, and other public buildings. These conditions clearly show the crying necessity for proper sewerage in that portion of the city. Opposed to that necessity, the plaintiffs, citizens of Carthage, refer to the large cost of the sewer, about $36 per acre, their large real estate holdings,, about one hundred and sixty acres, in the remote parts of said western drainage area,. embracing about eight hundred — 282 — and twenty-five acres, and contend that on account of the size of those holdings, the small number of residences thereon and the comparatively small benefits they will derive from the sewerage, a great hardship would be worked upon them — amounting to injustice and oppression, if not a confiscation of their property. That contention must, also be viewed from a different angle from that suggested by counsel for plaintiffs. ■ In pursuance to the requirements of section 9282, Revised Statutes 1909, the city by ordinance No. 102, divided the unsewered territory of the city into sewer districts, numbered from 10 to 69, inclusive, there being at the time of the adoption of said section, nine sewer districts supplied with sewers under the statutes in force prior to said adoption. Subsequent to the passage of said ordinance No. 102, the city enacted ordinance No. 103, ordering the construction of the main sewer here in controversy, declaring therein that sewer districts numbered 17 to 44, inclusive, were deemed to be benefited thereby, except No. 20, which the counsel found could not be drained into said sewer or benefited thereby; also adopted plans and specifications for the construction of said sewer, as required by said sections of the statutes. Plaintiffs’ lands lie in districts twenty-four, thirty-five and forty-four, and vary in quantities from four to fifty acres, aggregating according to defendant’s evidence, one hundred and thirty-four acres, and that of plaintiffs to one hundred and sixty acres. It is not denied that the main sewer in question will, by means of district or lateral sewers, drain all of plaintiffs ’ lands when constructed and connected with it; but the main bone of their contention is that this main sewer will be of no benefit whatever to them until the lateral sewers are constructed and connected therewith, which are not authorized to be constructed by said ordinances, and therefore their lands will be taxed at $36 per acre without any corresponding benefit; it is also contended that even though the lateral sewers were to be constructed, then their construction would cost approxi — 283 — mately $190 in addition per aeré, making a total cost of about $225 per acre for the- construction of the main and lateral sewers. For tbe sake of argument, let us assume these figures to be correct (which is only an assumption, as the lateral sewers have not been ordered constructed, and consequently no plans or specifications therefor have been made, nor have estimates and bids been made of the cost of furnishing the materials and performing the labor necessary for their construction), then it is apparent that from this record there is no present necessity for the lateral sewers and we must presume that the city council will not violate its duty and order their construction in the absence of such necessity; however, should it so do, then and not now, would be the proper time to challenge the reasonableness and validity of ah ordinance ordering their construction. Under the foregoing view of the case we have only to do with the construction of the main sewer in question, the only one ordered constructed: It may for argument’s sake be conceded that the plaintiffs’ property will not, at the present, receive as great a relative benefit from this sewer as will the other residences in that part of the city; but that is due to the fact that their property is not so densely populated, and consequently .that part of their farms and truck patches not used for residence purposes does not need such drainage. But that is not all that is in this case; every person in this State and country holds his property subject to the laws providing for the public health, safety, morals and general welfare, and, if taken or damaged for any one or more of those purposes, then he is entitled to just compensation therefor ; likewise, his property must bear its just portion of the cost and expense of securing that protection. Both of those propositions are elementary; and it cannot be disputed that the main sewer in question is of great necessity for the preservation of the public health of the entire western portion of the city; not only that part of it densely populated is benefited, but also that part occupied by the plaintiffs. No one could seriously contend — 284 — that the deposit of the refuse of that part of the city into vaults or the discharge of it upon the surface of the ground, so as to find its way to Spring River through or along the natural draws or depressions before mentioned, would be, and, as the evidence shows, is, a continuing menance to the public health, especially to all that part of the city including the plaintiffs. The public health is menaced and endangered by the aggregation of filth and refuse of the entire district, and is not limited to accumulations thereof upon or about each separate lot or tract of ground located therein. We know from the laws of gravity, observation and experience, that garbage and refuse of a city and elsewhere, if not removed and cared for, will seep through the earth and drain down hill to the lower levels, and there become more poisonous, sickly and'deathly than upon the higher grounds; this is true for the reason that the rains, snows and seepage will dispose of and carry much of it to the low places; so from a sanitary point of view, the disposition of the sewage of that part of the city lying higher up the slope than the property of the plaintiffs, is of equal benefit, if not greater to plaintiffs, than it is for the people residing above them. The chief purpose of a sewer, system is the protection of the public health, and as we have seen, the plaintiffs’ property will be equally protected in that regard by the sewer in question; and it is not therefore true, as contended for by counsel, that they are not benefited thereby, or that they are not equally protected with the other residents of that part of the city. Counsel for plaintiffs seem to think that the benefits to real estate only can be considered in the construction of sewers. While in a technical sense that may be true, but in a practical sense, it is only indirectly true; in a primary sense, the benefits are eonferrd upon the entire people of the district, and secondarily upon the real estate, by virtue of its being thereby made more desirable for business and residential purposes, which correspondingly increases the value of the land — presumably equal to the cost of construction, but perhaps not exactly in all cases. — 285 — The lateral sewers, as previously shown, will receive the refuse of the upper part of the city, and discharge it into the main sewer, and thereby prevent the same from being discharged into natural and open drains running-through or near plaintiff’s property, and thereby prevent it from seeping through the ground and otherwise flowing upon plaintiffs’ property, which, if not thus prevented, would render their section of the city unsanitary; and in that way the plaintiffs will receive as much or more indirect benefit from said lateral sewers as the densely populated part of the district will from that part of the main sewer which runs through or near plaintiffs’ property; and if it is a hardship upon the plaintiffs to have to contribute to the payment of the main sewer before they connect their lateral sewers with it, then they are more than compensated therefor by receiving the benefits of the lateral sewers located above, as previously mentioned. The cost of the construction of the latter, according to plaintiffs’ own figures, is far in excess of the cost of the construction of the main sewer; this throws some light upon the relative benefits received by each section of the district. In that way plaintiffs receive the benefits of the main and lateral sewers located above them, without paying one penny therefor, and when they construct their lateral sewers and connect them with the main sewer in question, then the entire district will be completely drained with equal benefits and equal cost; if any difference in cost, it is in favor of the plaintiffs, because they will not be required to construct their part of the lateral sewers until the necessity of that section of the district demands it. The law does not require all of the lateral sewers of a drainage district to be constructed at the same time; they may be constructed as the necessities therefor may demand. [City of St. Joseph to use of Gibson v. Owen, 110 Mo. 445.] In fact, the city has no authority to construct them until such necessities do arise; otherwise the ordinance would be unreasonable, unjust and oppressive. — 286 — But should it be conceded that the cost and benefits are not exactly equal, that, however, would not invalidate the proceedings or the tax-bills issued in payment of the improvements — this not being an Utopian government, exact equality in taxation cannot be obtained, approximate equality is all the law requires, and in my opinion, that has been accomplished in this case. Especially is that true since that portion of the city situate on the elevation above the property of plaintiffs is thickly populated and is at present in need of lateral sewers, and must, if not already built, be constructed at once, and the burden thereof must be borne by that part of the district only, and not contributed to by the plaintiffs. II. Counsel for plaintiffs also raise the question as to whether or not the extension of the city limits embracing their lands was illegal on account of lack of notice of the election held to extend the limits. The evidence upon this question is not sufficient to justify the court in giving it serious consideration; besides that, the contention seems to be too stale to justify consideration, fifteen years having elapsed since the extension was made. In the case of State ex rel. v. Westport, 116 Mo. 582, where the delay had been only twelve years, this court refused to consider the question in a direct proceeding by quo warranto, holding the parties had slept too long on their rights, if any they had, and were therefore estopped. The case of State v. Leatherman, 38 Ark. 81, is to the same effect. In Perkins v. Fielding, 119 Mo. 149, this court held that the validity of an ordinance could not be collaterally attacked on the ground the council was not legally constituted. There is no merit in this contention. There are other minor questions presented, but they do not affect a proper disposition of the case. For the reasons stated, the judgment of the circuit court is affirmed. All concur, Bond, P. J., in result.