Opinion
10-21-1954
CITY OF VERNON, a municipal corporation, Plaintiff and Appellant, v. CITY OF LOS ANGELES, a municipal corporation, Defendant and Respondent. Civ. 19890. Division 2, California
Carson B. Hubbard, City Atty., Huntington Park, Edward R. Young, John F. O'Hara, John W. Shenk III, Los Angeles, for appellant. Roger Arnebergh, City Atty., Bourke Jons, John L. Flynn, Asst. City Attys., Weldon L. Weber, Deputy City Atty., Los Angeles, for respondent.
CITY OF VERNON, a municipal corporation, Plaintiff and Appellant,
v.
CITY OF LOS ANGELES, a municipal corporation, Defendant and Respondent.
Oct. 21, 1954.
Hearing Granted Dec. 15, 1954.
Opinion Vacated 290 P.2d 841.
Carson B. Hubbard, City Atty., Huntington Park, Edward R. Young, John F. O'Hara, John W. Shenk III, Los Angeles, for appellant.
Roger Arnebergh, City Atty., Bourke Jons, John L. Flynn, Asst. City Attys., Weldon L. Weber, Deputy City Atty., Los Angeles, for respondent.
MOORE, Presiding Justice.
The judgment herein denied appellant declaratory relief, denied her specific performance of alleged contracts for the disposal of her sewage and denied her damages for the alleged negligence of respondent in the latter's attempts at such disposal.
Frustrations of a Land-Locked City
Prior to the drama here unfolded, perhaps in neither the ancient nor the modern world were there ever two municipalities so circumstanced that one was wholly contained by the other, both requiring transportation of their sewage to the sea. In 1909, appellant suddenly awoke to the realization that she was surrounded by a growing, throbbing metropolis that had anticipated the need of a people by laying sewer line twenty miles to the Pacific Ocean. At that time, appellant had no exterior source for a domestic water supply but depended upon the subterranean seepage from the Los Angeles River. Hence, it illy behooved an aspiring industrial town longer to rely upon cesspools and more primitive methods of disposing of its filth and sewage to the end that they would no longer imperil the health or mar the comfort of an increasing citizenry.
The Composite Agreement
To accomplish such worthy aims, appellant applied for and in 1909 was by contract, pursuant to law, Stats.1909, p. 677, granted the privilege of connecting her sewer lines with the Los Angeles system whereby to dispose of the sewage originating within the limits of Vernon. Naturally, with the increase of the sewage of all the towns surrounding Los Angeles, strange and novel problems arose to require solution. Such dilemmas resulted in the subsequent execution of four other contracts between the two cities, to wit, two in 1925, one in June 1931, and the final in August 1938. By reason of the fact that each successive contract (except that of June 1925) was carried into the final document, the thoughtful trial judge appropriately adopted the term 'composite agreement' when referring to the effect of the four contracts.
Relief Sought
Uncertain as to the relief to which she might be entitled, appellant sought first a judgment declaring that the composite agreement obligates respondent to remove the Vernon sewage to the Pacific Ocean; that such agreement be specifically enforced, and in the alternative, a judgment for damages in the total amount which appellant had been required to pay by a judgment entered in an action brought by the State of California to abate a nuisance caused on the shores of Santa Monica Bay in which appellant and respondent and other cities were defendants.
The Five Several Contracts
Pursuant to the first contract respondent built a main and a lateral sewer in Vernon for the joint use of the two cities and connected them with the Los Angeles system. While appellant was not required to pay anything for connection with the outfall sewer, she agreed to pay one half of the cost of the main sewer lying in Vernon, not to exceed $12,000, one fifth of the cost of the lateral, not to exceed $1,300, and one-twentieth of the cost of operation, maintenance and repairs of the jointly owned sewers. The writing provided that the main and lateral should carry from Vernon such sewage as might be conducted by gravity only to them by any system of sewers constructed by Vernon.
At the date of that contract both parties knew that the only easy method of sewage disposal for Vernon was to convey the raw sewage into the Los Angeles central sewer which conveyed it without treatment into the ocean 800 feet beyond the shore at Hyperion. It will be noted that the facilities employed by the city consistently improved as time elapsed. Eight years after the execution of the first contract, an entirely new pier was constructed at Hyperion which conveyed the raw sewage 2,000 feet from shore, and discharged it beneath the surface of the sea. But this did not long meet the requirements. As the several cities from Santa Monica to Redondo, along the water's edge, continued to increase in population, homes, business and industries, the sewage refuse, brought landward by the waves, inspired complaints all along the Bay. Responding thereto, in 1922 Los Angeles raised $12,000,000 from the sale of a bond issue and constructed and completed in December 1924 the North Outfall Sewer, a screening plant and a submarine tube at Hyperion. After screening the sewage through slots, two inches by one-sixteenth inch, the effluent was sent down the tube to the darkened depths one mile from the water's edge.
By contracts made in June and August 1925, appellant was to purchase additional capacity in the outfall sewer to drain other areas for the sum of $86,745. Although she paid less than one third of that sum, she did not comply with the covenants in the August contract whereby she obligated herself to take 'all measures possible to require' all users of her sewers 'to comply with any and all regulations' made by Los Angeles for the users of its sewers. The city had required a limit on the parts per million of solids, grease or other harmful material discharged into the sewer. Not only did appellant fail to make such rule for her patrons, but, also, she refused to require industrial plants to install facilities that would qualify their sewage before discharging it into the outfall sewer.
Vernon's failure to observe her obligations with respect to the care of the sewers was not due to any doubts as to the efficiency of the city's facilities. Not only did the State Board of Health believe, in 1925, that the problem of sewage had been solved but sanitary engineers generally had recommended the screening plant. While it, as well as the submarine tube, was a new idea to the sanitary engineering world, both were approved by the special sewage disposal commission who had recommended, in 1921, that those facilities would abate the nuisance caused by the faulty sewer at Hyperion. So pleased was the State Board of Health that they approved the plan in January 1923 and issued a new permit to Los Angeles for the new plant at Hyperion as proposed. In December 1927, the State Board authorized Vernon to empty her sewage into the Outfall Sewer to be treated at Hyperion and to be discharged down the submarine tube.
Notwithstanding the enthusiastic confidence of both the practical and the scientific apostles of sanitation in the new plant and submarine tube, it was found to be clogged by the great masses of grease and sludge that clogged the slots in the screen. By 1929 the treatment plant was found to be unequal to the task of avoiding the creation of a nuisance in the local waters or of caring for the growing needs of Los Angeles and environs.
For all the service Vernon had enjoyed, what had she paid? She had paid only (1) $9,388.08 as her portion of the cost of two short sewer lines constructed in her streets by Los Angeles for the joint use of the two and (2) one twentieth of the cost of maintaining such jointly owned sewers. Moreover, after 1930, the Vernon sewage was turned into the new North Outfall Sewer, and made use of 28.96 miles thereof and by 1939 Vernon had taken over the exclusive use of portions of the joint sewers Los Angeles had constructed at slight cost to appellant. On the other hand, the city had paid out millions for the very facilities which Vernon enjoyed for a bagatelle. To June 30, 1949 respondent had paid for the facilities used by both cities and for replacement and repairs in excess of $20,500,000.
Despite the struggle against the contamination of the sea and its shores, population multiplied, business increased and industry flourished. But Los Angeles' funds for improving the sewage system did not keep apace with demands. The city was, alone, unable financially to keep apace with the increasing volume of sewage and Vernon did not give support according to its benefits. New contracts were made: (a) in 1931 the free flowage rights of Vernon were restricted to 11.7 cubic feet per second and she agreed to pay $259,220 as a down payment, also maintenance and replacement costs for the privilege of discharging an additional 8.8 cubic feet per second into the Outfall Sewer. The court below found that on neither score did Vernon keep her promise. (b) In 1938, because Vernon had failed to make the payments promised in 1931, the additional flowage was reduced from 8.8 cubic feet per second to 4.3 cubic feet per second and Vernon promised to pay $112,885 by April 1, 1939. Such agreement failed of performance. Neither did Vernon do a single act to remedy the situation when it became apparent that the screening plant and submarine outfall were inadequate. Yet she accepted the privilege of connecting with the North Outfall Sewer, used 28.96 miles thereof and took over the exclusive use of the jointly owned sewers in Vernon.
Such was the situation when in December 1943 the State instituted its abatement action on behalf of the Department of Public Works and the Fish and Game Commission against both Vernon and Los Angeles and other contributing municipalities, to abate the nuisance on Santa Monica Bay. In that action, it was established that Los Angeles had employed the most highly skilled talent available to design an efficient treatment plant; that it had failed to construct one at a cost of $21,000,000 only because of the constitutional limitation upon the City's bonding capacity; that it had vainly applied to the Federal Emergency Administration for $1,775,000; that it had requested the W.P.A. in 1935 to advance about $6,994,500 toward financing the construction of a treatment plant at Hyperion; that it had effected a loan from the W.P.A. of $3,000,000 for the purpose of removing the millions of cubic yards of sand and screenings from the Hyperion site but the operations were suspended when half completed; that the city had in 1938 applied to the W.P.A. for a grant of $11,619,000 and a loan of $14,201,000 with which to build a new outfall sewer and treatment plant and to repair the North and Central Outfall Sewers. Dr. Gillespie, author of the report on 'Pollution and Survey of Santa Monica Bay,' called as a witness for Vernon, testified that to prevent the creation of a nuisance, Los Angeles would have been compelled to pay $18,000,000 for repairs and additions to the Hyperion plant and that the city had attempted to stop leaks in the outfall to the extent of its available funds. But the proposed ten-cent tax and further bond issues were rejected by the people. Numerous other efforts were shown to have been made to finance the proposed facilities and rejected, while at the same time every reasonable effort was made by Los Angeles to maintain its treatment plant and submarine outfall in operating condition. But the decree in the Abatement Action adjudged all the defendants guilty, and that Vernon had omitted to take any steps toward planning, financing or constructing adequate sewage treatment works. The court found Los Angeles had in 1944 employed a distinguished firm of consulting sanitary engineers to investigate and advise with reference to the problem of sewage disposal for the city and that their elaborate report was made to the Board of Public Works recommending in detail the construction of (1) a 'high-rate activated sludge treatment plant' that would produce a clear effluent and (2) a submarine tube, and that the State's Bureau of Sanitary Engineering believe such facilities would be satisfactory. The court found that Los Angeles and its Board of Public Works accepted and approved the report of the consulting engineers and ordered the prompt commencement of the plans for such plant; that while such plans were in the process of preparation, the court found their embraced method feasible. No finding was made of any similar effort on the part of Vernon which apparently relies upon the finding that she could dispose of sewage arising in her corporate limits through the sewage system of the County Sanitation District.
Not only was it shown on the trial of this action that Vernon was noncooperative during such period in the matter of financing a new plant and sewer system but she violated her contract by pouring into the city's sewer system excessive and prohibited amounts of sewage and excessive amounts of grease which destroyed the efficacy of the screening plant. Notwithstanding her agreement of August 1925 to require the Vernon users of the sewers to observe the minimum standards with respect to the quality of sewage and wastes, it was conclusively proved that Vernon not only failed to enact appropriate ordinances to enforce the maintenance of such standards but that her residents discharged excessive and illegal amounts of suspended solids, grease, fats and rock into the Los Angeles outfall sewer. From one manhole in Vernon a truck load of grease and tallow were removed; from another, a load of asphalt, rock and sand. So excessive was her 'free flow' that at times the sewage would rise in the manholes from three to five feet above the sewer line, and the gauging stations were frequently flooded. In view of the fact that by the contracts of June 1931 and August 1938 Vernon was limited to a total flow of six cubic feet per second at a specified point, the trial judge properly found that 'almost immediately after entering upon the performance of the contract of June 1931, the City of Vernon discharged into the Los Angeles Sewerage System at certain connecting points quantities of sewage far in excess of the quantities authorized to be discharged at those points respectively by said contract.'
Findings in Abatement Action
Despite Vernon's denials of every allegation made against her by the State, and her allegations that Los Angeles had sole responsibility for the disposal of Vernon's sewage, the court found that for many years both cities had created a nuisance in Santa Monica Bay by using the plant and tube at Hyperion to discharge into such waters substances dangerous to public health; that such nuisance has been wilfully maintained by Vernon and Los Angeles jointly and severally; that all defendants know they are enjoined by law with the duty of removing such public nuisance and with the duty of disposing of sewage in compliance with the law; that Vernon and others (not including Los Angeles) have not prepared plans for the construction of adequate sewage facilities but that Los Angeles has taken steps to design methods, to finance the employment of consulting engineers, and to formulate detailed plans and specifications.
It was then, in the abatement action, concluded and adjudged: 'regardless of past relationships or contractual or other rights, privileges or obligations between the various defendants,' the State was entitled to an injunction against each defendant from maintaining any sewage treatment works, without a permit, for the treatment or discharge of sewage into Santa Monica Bay, and from maintaining a nuisance there; that it is the primary duty of each corporate defendant to dispose of its own sewage in a safe and sanitary manner and that no corporate defendant is released from such duty.
The judgment in such abatement action directed Los Angeles to proceed with plans for the building of a high rate, activated sludge plant, with Vernon to be permitted to use the new facilities only upon the condition that (1) she indicate her election to use them by filing an application with the State for a permit, (2) obtain such permit, (3) contribute her proportionate share of the cost of the new plant and sewers, and (4) complete arrangements to pay her share within ninety days after entry of judgment, February 1, 1946.
But Vernon did not obtain a permit; nor did she within the next four years pay anything toward its proportionate share of the cost of the new plant.
That judgment was affirmed. People v. City of Los Angeles, 83 Cal.App.2d 627, 189 P.2d 489. Efforts to obtain a review by the state and federal Supreme Courts were unavailing. Appellant has sought to obviate the effects of such judgment by the successful prosecution of the instant action. That she cannot do so was decided by this court on the cited appeal. That the latter is a correct decree is about to be demonstrated.
Specific Performance Is Not Available
When the litigant stands before the chancellor, he thereby declares: 'My cause is just; my hands are clean; I have dealt with the defendant honestly and fairly in the matter here to be investigated. I have not profited unjustly in my dealings with him; I have performed all my covenants with him respecting the matter involved in the instant petition.'
If such implied declaration is a fair statement of the rule governing the nature of the handicap of a plaintiff in equity, then appellant's course in her endeavor to enforce respondent specifically to perform the composite agreement or any of the five contracts is doomed to speedy termination.
Throughout the entire history of respondent's attempts to remove her sewage and that of appellant and other municipalities, the city industriously and desperately endeavored so to carry on the enterprise as to prevent the occurrence of a nuisance at the seaside. Although Los Angeles found it extremely difficult, if not impossible, to muster the necessary finances, in no emergency did it gain the cooperative support of Vernon. When the city sued appellant in 1929 to enforce the agreed limitation of 2.4 cubic feet per second, and in 1937 on Vernon's promise to pay sums of money and to limit her sewage flow, the lawsuits were not tried. Vernon did not pay the sum of $112,885 as promised in the contract of 1938, but discharged excessive quantities of sewage and grease into the outfall sewer contrary to her promises in that year. The agreements in the contract of 1931 were breached. Vernon neither honored the limitations imposed, nor paid the moneys promised. When by the contract of 1925, Vernon agreed to require all patrons of her sewers to adhere to the minimum standards prescribed by ordinances and observed by Los Angeles with respect to quality, appellant adopted no regulatory ordinance. Six witnesses testified to Vernon's excessive amounts of solids and grease discharged into the outfall sewers.
In the instant action, instituted by Vernon, her rights under the contracts were determined. The court found that Los Angeles is now constructing a high rate activated sludge treatment plant and a new submarine outfall at Hyperion at a cost of $41,000,000; its operation and maintenance will require an annual outlay of a half million dollars; performance of the contracts to carry away appellant's sewage cannot be done without an 'excessive and unreasonable cost.' The average expense for screening the sewage from 1926 to 1948 was $1.28 for a million gallons of sewage. By use of the new facilities the cost of the treatment of a million gallons is in excess of $25.
The contracts are not enforceable by virtue of the adjudications that they are invalid and were terminated. The court below found that the denials and allegations of Vernon in the Abatement Action put the issue of the existence of the contracts unequivocally before the court and that 'except for certain salvageable elements' the court adjudged that they were not thereafter enforceable.
Pursuant to its findings in the abatement suit on Vernon's allegations and denials, the court distinctly held that the primary duty rests upon Vernon to dispose of its own sewage and that such duty was not released by virtue of any contract. She was enjoined from using the screening plant or the proposed activated sludge plant or the submarine tube or the ocean itself without first having obtained a permit from the State and also having paid her proportionate share of the cost of the new plant. There is no side-stepping or evading the full effect of such holding. Vernon was a party to the abatement suit. She was there accused as a joint tort-feasor with Los Angeles. Each presented its evidence against the charges of negligence, and the judgment entered against each determined its legal obligation to the State and to all patrons of the outfall sewer. There is no escape; the judgment is final. Performance having been made unlawful, Civ.Code, sec. 1511(1) the contracts could not be performed without complete compliance. Vernon's permit to use the sewers of Los Angeles had been cancelled, and she could not get it restored without first satisfying the conditions precedent prescribed in the injunction of the abatement action. See National Pavements Corporation of California v. Hutchinson Co., 132 Cal.App. 235, 238, 22 P.2d 534; Collins Hotel Co. v. Collins, 4 Cal.App. 379, 88 P. 292; Industrial Development & Land Co. v. Goldschmidt, 56 Cal.App. 507, 509, 206 P. 134.
By such judgment, the privilege of discharging Vernon's sewage into the Los Angeles' sewerage system came to an end.
It is not true that the statute upon which the court based its judgment in the abatement action has been repealed. Technically, that is a fact, but as the old statute, Ch. 6, Part 3, Div. 5, Health & Safety Code, passed into limbo, sections 5410-5416 and 5460-5463 were enacted, and sections 13000 to 13064 were added to the Water Code. These laws provide greater power to the law-enforcing agencies than the latter enjoyed under Division 5 which is asserted to have been repealed. The abatement judgment having been affirmed, it is a final decision and its holdings are unalterable. The contention that 'the issues created by * * * Vernon's answer in the abatement case were not passed on by the court and were not judicially determined' is contrary to law. It is firmly entrenched in the corpus juris of this state that all issues raised by the pleadings are adjudicated by the judgment entered. Judge Palmer's reaction to such contention is a final disposition thereof: 'When an appellate court affirms a judgment of a trial court, makes no modification, orders no change in findings, conclusions or judgment, the only existing judgment * * * to which we can look for authority is the judgment of the trial court.' Because that is the law, the suggestion of the court of appeal in the abatement action that the 'mere fact that Vernon had a contract' with Los Angeles for the disposal of her sewage does not enter into the merits of this action. It is pure dictum and cannot affect the judgment which made unenforceable the exercise of the alleged rights. Childers v. Childers, 74 Cal.App.2d 56, 62, 168 P.2d 218. In Cox v. Tyrone Power Enterprises, 49 Cal.App.2d 383, 397, 121 P.2d 829, Justice Schauer declared: 'A judicial opinion must be construed with reference to the facts on which it is based.' Thus considered, the dictum of Justice White cannot be considered as the rule for guidance here. Notwithstanding one erroneous paragraph alleging that Vernon and others had purchased an undivided interest in the facilities at Hyperion was stricken on the State's motion, Vernon's rights in the sewer were nevertheless adjudicated. Her allegations and denials were sufficient to effect a final adjudication of all her alleged contractural rights.
The Contracts Are Not Enforceable
Appellant contends that by the contract of 1909, as incorporated in that of 1931, she was promised free flowage of her sewage into the Los Angeles Outfall Sewer, screening plant and submarine tube to the extent of 11.7 cubic feet per second. Inasmuch as a city's contract for using the facilities of a sister city can provide for no more than is authorized by the enabling statute, it will be of value to inspect the Act of 1909. Stats.1909, Gov't. Code, secs. 55000 to 55115. It is there found that five different arrangements are provided for the construction of sewers in, and for the use of streets of neighboring cities. The purpose aimed at by the act was to authorize a city to permit another municipality to contract for the construction and maintenance of sewers within such municipality for their joint benefit, and at their joint expense. For illustration: (1) Vernon may permit Los Angeles to lay sewers in Vernon's streets, subject to reasonable regulations as to safety and sanitation. (2) If, when such sewers are being laid, Vernon desires to do so, she may connect her sewers with those being laid by Los Angeles and may use them as a part of her own sewer system upon payment to Los Angeles by Vernon of her proportionate share of the cost of construction and maintenance. Sec. 2, paragraph 3, Act or 1909, Gov't. Code, secs. 55027, 55028.
In the actual contract of 1909, the sewers in question are merely segments within Vernon constructed by Los Angeles.
The right given by paragraph 3 of the Act to Vernon is to connect her sewers with the segments and to use the latter as a part of her sewer system. But such right does not include the privilege of Vernon to the use of outfall sewers of Los Angeles, or to its treatment plant, or sewer mains or the submarine tube. The payment by Vernon of its proportionate share of the costs of construction and maintenance was a payment of its share of the cost of the segments and no more. Such payment was not the payment contemplated in order for Vernon to have a proprietary interest in the Los Angeles sewer system. To gain such interest, it would have been necessary for Vernon to pay for the 'joint construction and maintenance' of all necessary outfall sewers as well as those laid in the upper reaches of the city. Such is the meaning of the act. Gov't.Code, secs. 55080-83. Clearly, it was a partial payment of the cost of constructing two segments of sewers in Vernon. Therefore, there was no such compliance with the Act of 1909 as to entitle Vernon to 'free flowage.'
But appellant contends that its contract was drawn under another section of the act, Gov't.Code, secs. 55090-91. Providing for an agreement between two cities for the use of a sewer system already built. There was no compliance with the cited section for the reason that Vernon did not pay a 'proportionate share' of the system already built, but paid only a 'connection fee'; nor did she make arrangement to reimburse Los Angeles for the cost of constructing the outfall sewers. The contract of 1909 made no provision for payment of any part of the cost of the outfall sewers. Because of the failure of that document to include such provisions, it is not a valid agreement. It had no vitality except as inspired by the legislative Act of 1909.
The contract discloses that this frustrated city executed a mere arrangement for the connection of her sewers with the Outfall, Gov't.Code, secs. 55027-28; that Vernon paid no adequate consideration for the joint construction of an entire sewerage system which was essential to make it a valid contract under section 4 of the Act. If the 1909 contract is to have validity, it can have it only by construing it as an agreement for a 'connection' contract under sections 55027-28, Government Code, or section 2, paragraph 3 of the Act. Otherwise, it is void because it is ultra vires in that the legislative authority would have made a gift to Vernon of the property of citizens of Los Angeles. Const. Art. IV, sec. 31. The very language of the 1909 contract is that Vernon shall pay as her share, 50 per cent of the cost of the main sewer on Vernon Avenue and Soto Street and 20 per cent of the cost of the lateral on Santa Fe Avenue. Such is proof of a clear intention to make a 'connection' contract. The only reference in the document to the 'outfall sewer' is the provision for the 'connection' of the main sewer on Vernon Avenue and the lateral on Santa Fe with the outfall sewer. Inasmuch as free flowage rights into the outfall sewer are not mentioned in the contract, but only provision for connecting it with the jointly owned sewers, it must be clear to the impartial mind that no free flowage was contemplated for Vernon. References in the contract to the privilege of connecting her sewer system, later to be constructed by Vernon, with the two jointly owned sewers, and the failure of the document to provide for Vernon to pay her share of the capital cost of the outfall sewer are further proof of a want of intent to grant appellant free flowage rights.
Also, there is provision for (1) Vernon to discharge her nongravity sewers into the South Los Angeles Main Sewer, and (2) Vernon to connect her sewers subsequently to be constructed with the jointly owned sewers and shall pay 'Los Angeles, in installments, at such times as any sewers hereafter constructed by the said City of Vernon shall be ready for connecting.' From these and other internal evidences in the contract, it is established that the document granted to Vernon merely the right to connect her own sewers with the new 'main and lateral'. These in turn connected with the outfall sewer. Such arrangement cannot be reasonably interpreted as a perpetual franchise for free service to convey, treat and discharge into the ocean all the sewage of Vernon. She acquired by the 1909 contract a vested right in nothing but the two segments built in Vernon by Los Angeles. But this does not mean appellant did thereby acquire a vested right in the Los Angeles Outfall Sewer for a perpetual free flow of 11.7 cubic feet per second--or any amount.
Neither by any general law, nor by an ordinance, nor by contract was Los Angeles authorized to grant to Vernon such a generous privilege. Every city has the right to regulate the use of its property according to its ordinances. But when its regulation or ordinance transcends the power of the municipality by making a gift of municipally owned property, or of a valuable right, the city will be enjoined from committing such act. Harter v. Barkley, 158 Cal. 742, 746, 112 P. 556. Merely because, pursuant to contract, the connection of Vernon's sewerage system with that of Los Angeles occurred on the streets of Vernon, the latter may not for that reason assert a legal right to a privilege to use the outfall sewer beyond the extent specified. 'No rule of law is better settled than that the police power may not be bartered away.' Baker v. City of Princeton, 226 Ky. 409, 11 S.W.2d 94, 95. Neither city could bargain to do more than it was authorized to do by the Act of 1909. Stats.1909, p. 677.
Inasmuch as Vernon contended before the trial court that her 'free flowage' rights derived from the 1909 contract, a further discussion of such rights arising from subsequent contracts would be an unnecessary burden. Suffice it to say, (1) that the power of a legislature does not extend to the point of imposing upon a city the responsibility for performing tasks or for conferring privileges for which such city receives no benefit. City of Redwood City v. Myers, 7 Cal.2d 283, 294, 60 P.2d 291, 108 A.L.R. 727; (2) that no city is authorized to surrender to another city its police power, Atlantic Coast Line R. Co. v. City of Goldsboro, 232 U.S. 548, 558, 34 S.Ct. 364, 58 L.Ed. 721; Ericksen v. City of Sioux Falls, 70 S.D. 40, 14 N.W.2d 89, 95; City of Peru v. Gleason, 91 Ind. 566, 576; (3) that the officials of a municipality may not violate the trust imposed upon them by voting away a sewer system held in trust by them for the benefit of its property owners. City of Fort Bragg v. Brandon, 41 Cal.App. 227, 229, 182 P. 454. No court would approve a contract which grants from Los Angeles to Vernon the right of discharging a flow of sewage to the amount of 11.7 cubic feet per second without consideration and compliance with adjective law. Chapman v. City of Fullerton, 90 Cal.App. 463, 468, 265 P. 1035; Laurel Hill Cemetery v. City & County of San Francisco, 152 Cal. 464, 465, 475, 93 P. 70, 27 L.R.A.,N.S., 260; Atlantic Coast Line R. Co. v. City of Goldsboro, supra.
No Negligence In Maintaining The Outfall Sewer Or Treatment Plant
Appellant's sharp complaint of the failure of the trial court to make a finding on her allegation that respondent was negligent is a far cry from the finding that proximate causation did not exist and that Vernon contributed to any damage she may have suffered. See Chamberlain v. Abeles, 88 Cal.App.2d 291, 299, 198 P.2d 927.
Vernon charged respondent with negligence and mismanagement of the treatment plant and that 'said sewage originating within the corporate limits of plaintiff has not been disposed of in a workmanlike or safe manner, but, on the contrary has been disposed of so as to create a public nuisance'; that because of such negligence Vernon has been ordered to pay out in excess of $901,250 as its share of a new plant and submarine tube.
In view of the stupendous growth of Los Angeles after 1920, and of the other municipalities that poured their endless flumes of sewage into the sea, and in view of appellant's current knowledge of the exact situation with reference to the efforts of respondent to remove all sewage to the sea, such charge appears to be a synthetic apparation herded onto the scene to add drama to the controversy. It was found upon substantial evidence that shortly after having executed the contract of June 1931, appellant sent into the outfall Sewer quantities of sewage far in excess of the amount authorized by such contract and yet did not the slightest act to abate the nuisance she had helped to create in the bay. She continued to dispose of her sewage without a permit to use respondent's sewer system after it was revoked in 1943. No charge of negligence on the part of Los Angeles was found to be true; nor was any negligence of the city the proximate cause of any damage to Vernon, but she has been benefitted by the judgment in the abatement action even though it required her to pay her proportionate share of the cost of the new treatment plant and the other facilities. Not only was Los Angeles sorely taxed to provide facilities required for the public health and safety, but such oppression was accentuated by the enormous increase in the amount of sewage in Vernon which, to have been denied transmission and treatment by Los Angeles officials would have created an immediate peril to the health and safety of the people dwelling between Los Angeles and the sea.
Vernon knew that soon after the commencement of her contractual relations with Los Angeles, the old methods were outmoded and that pouring raw sewage, merely screened, would soon convert the wholesome sea breezes of the bay into a world of smell and stench. She knew that during an extended period she had not done a solitary act to avoid the coming catastrophe, but on the contrary, in the summer of 1931, immediately after having executed the contract of June, she sent into the bay quantities of sewage far in excess of those authorized by her agreement, to say nothing of the huge cargoes of grease and other sewage by which her patrons impaired the efficiency of the sewer system. While the court below found all the allegations of respondent's negligence to be untrue, this record justifies the conclusion that throughout the contractual period Los Angeles has been required, within its limited financial power, to provide adequate sewerage facilities for the protection of the health, safety and peace of the Los Angeles Basin as well as of the coastal cities. The court found not only that respondent was not negligent but that Vernon has not been damaged and has been benefitted by the judgment in the abatement action.
In their joint contractual endeavors, Vernon assumed all the risk. She contributed mightily to the menacing nuisance that induced the abatement action. If she was a joint tort-feasor, how can she lay claim to damages against her own confederate? Negligence of Los Angeles toward Vernon was not shown by the evidence of other devices that would have improved the effluent of the screening plant at Hyperion or by the failure of Los Angeles officials to cause the approval of a bond issue of $18,000,000 required for the construction of new facilities at Hyperion.
How could Los Angeles have been negligent toward Vernon by the former's failing to adopt the proposed bond issue? A host of prominent officials and citizens testified and proved that the screening plant at Hyperion was operated to its highest degree of efficiency from 1924 to its dismantling in 1950; that the submarine outfall was kept in repair as long as its condition warranted repairs and that an intelligent campaign was waged to authorize a sufficient bond issue to construct a new treatment plant. Their testimony supported the finding that respondent did all that it was able to do to prevent a nuisance.
Her final contention that respondent alone is responsible for the nuisance and the abatement judgment because only Los Angeles could control its sewerage system and the disposal of all the sewage is to disregard the facts and the law. It is not within the power of a city to guarantee the successful operation of its sewage disposal plant. If such plant for any reason fails to receive the sewage or adequately to purify it, after having received it, the municipality cannot be mulcted in damages on the complaint of one whose sewage is thereby inadequately treated. Ericksen v. City of Sioux Falls, 70 S.D. 40, 14 N.W.2d 89, 95. If the South Dakota court in the cited case has correctly declared the law, Los Angeles could not lawfully have assumed the responsibility of receiving and disposing of all the sewage turned into its outfall sewer.
Vernon's reference in this connection to Carmichael v. City of Texarkana, C.C., 94 F. 561, as support for her contention is an unfortunate citation. Carmichael sued not only Texarkana but also other inhabitants who used the sewer system. The court held that the inhabitants of a city who invoke its powers to construct a facility for the public benefit and make themselves liable for the financing of the enterprise and use the improvement on completion are not jointly liable with such city for its negligent construction or operation of the facility.
Judgment affirmed.
McCOMB and FOX, JJ., concur.
Hearing granted; SHENK, J., not participating. --------------- 1 Her only ordinance on the subject was of general import which forbade any sewage to be put into sanitary sewers that would be detrimental to them. 2 'Therefore, the court rightfully refrained from passing upon any of the rights, obligations or liabilities affecting the various defendants by reason of their contractual relations with each other, and left those matters open for future adjudication in a proper proceeding. Although the aforesaid contracts concerned the disposal of sewage, the court would not be justified in this action to adjudicate the rights existing between the various appellants by reason of their contracts one with the other. Insofar as the judgment herein is concerned, if any of the appellants have any rights against the city of Los Angeles, or vice versa, by reason of any existing contract, such rights have been preserved and may be enforced in a proper action. All of appellants' property and rights were preserved to them and the judgment in the instant action does not impair or violate any of their constitutional rights.'