13 Colo. App. 36 | Colo. Ct. App. | 1899
Petition for a writ of mandamus commanding the board of public works of the city of Denver to allow to William Hayden an estimate for work done by him in the month of November, 1897, under a grading contract between him and the city. Demurrer to the petition for want of facts sufficient to authorize the issuance of the writ. Demurrer overruled, leave to respondents to answer petition denied, and peremptory writ ordered. Case here by writ of error.
The application was upon notice, as provided by the code, and there was no alternative writ. The petition set forth the several proceedings had by the board of public works and the city council for the grading and curbing of certain streets of the city of Denver and the letting of the contract to the petitioner. The contract, as set forth, provided for payments to the contractor “by local improvement bonds or warrants, drawn on the Capitol Hill grading and curbing district number one fund, in monthly installments of eighty per cent of all moneys due for work done the preceding month under and in accordance with the provisions and stipulations of the contract, based on monthly estimates of work done, cp.rtifip.rl to by the engineer, and approved by the board and the mayor.” The contract also provided that upon the full completion of the work, the board should cause a final estimate to be made of the amount and value of the work, upon which, after deducting the sums previously paid, the contractor should receive the balance due him. The petition further averred the entering by the petitioner upon the performance of his contract, and the prompt, full and complete discharge by him, at all times, of his part in the execution of the contract; and alleged that during the month of No- ■ vember, 1897, he did and performed work under, and in accordance with, the provisions and stipulations of the contract,
The demand upon the board for an estimate was made in pursuance of section 43 of article 7 of: the city charter, which provides that the bonds or warrants in which local improvements shall be paid-for shall be issued upon estimates and orders of the board of public works, approved by the mayor.
The question of the nature of the duty devolved by law upon the board in the matter of granting the estimate mentioned in the petition is not noticed by counsel in their argument. If it was purely ministerial, if the board was clothed with no discretion concerning it, mandamus will lie to compel its performance; but if the board had authority to inquire into the alleged facts upon which the demand was based and determine whether the petitioner had so complied with his contract as to entitle him to the estimate, then the duty involved the exercise of official judgment, and the manner'of such exercise cannot be controlled by mandamus. But as the question has not been raised, we shall not examine it; and acquiescing in a theory of the case upon which both sides
But to dispose of the question whether, on the overruling of their demurrer, the respondents were entitled to leave to answer, will require more extended discussion. The learned counsel for the petitioner denies the right in an argument based entirely on the phraseology of the chapter of the civil code relating to mandamus. Under a technical and arbitrary system of practice which it was the purpose of the reformed procedure to simplify and relax, the respondent was always allowed to test the sufficiency of the alternative writ before being required to make return. The objection was usually taken by motion to quash the writ; and upon a ruling against the motion, leave was given to answer. High on Extraordinary Remedies, § 521, et seq.; King v. Mayor of York, 5 T. R. 66, 75; Harwood v. Marshall, 10 Md. 451; State v. Lean, 9 Wis. *279. And to enable us to say that by interposing objections to the writ or petition, which go to the sufficiency of its allegations, the respondent loses the right to make answer if his objections are overruled, it must clearly appear that to permit an answer would be inconsistent with the provisions of the chapter.
The chapter concerning mandamus commences with section 307, and ends with section 320, of the civil code. The following is the first clause of section 307: “ The writ of mandamus may be issued in the manner provided in this chapter, and not otherwise.” It is then provided that the writ shall be issued upon petition and affidavit, on the application of the party beneficially interested, and shall be either alternative or peremptory; that when the application is made
Now it is said that the provision that the writ of mandamus may be issued in the manner provided in this chapter, and not otherwise, confines the parties to the exact procedure which the charter prescribes; that because objections in limine to the writ or petition are not specifically authorized, none can be taken; and that the only way in which the respondent can meet the writ or petition is by answer. It is also contended that the demurrer was an answer within the meaning of the chapter; that as it raised only questions of law, the case was one for determination by the court upon the arguments ; and that as the pleading is technical and the practice rigid, and there is no discretion in the court to allow an amendment, a decision upon the demurrer concludes the case. Upon counsel’s theory, the law of mandamus, as found in the code, is rigorous and arbitrary in the extreme, and may be made the instrument of oppression and injustice. We do not think that such a theory is necessarily dedueible from the language of the chapter, or that the construction contended for is in harmony with the spirit of the code. With reference
The answer first puts in issue the allegations of the petition that the petitioner had at all times promptly, fully, and completely discharged his part in the execution of the contract, and that, during the month of November, 1897, the petitioner performed the work under and in accordance with the provisions and stipulations of the contract. The alie
The propositions which the learned counsel for the petitioner undertake to establish are, first, that by virtue of the provisions of the city charter the grading of the sidewalk areas cannot properly be included in a contract for grading
We shall now look into the city charter to find in what connections and with reference to what subjects the word “ street ” is employed there; and what it was intended, or was not intended, to include. It is provided by sections 35 and 36 of article 3 as follows : “ The board of public works shall have exclusive management and control of the construction, reconstruction and maintenance of all public and local improvements, including the grading, paving, curbing or otherwise improving, of the streets, alleys and other public places, except parks, of the city; of all public, district and private
We extract the following from article 7 :
“ Section 1. The city shall have power to contract for and make local improvements, and to assess the cost thereof Avholly or in part upon the property specially benefited, as hereinafter provided; all contracts for public improvements shall be awarded by the mayor, upon the recommendation of the board of public works, and the improvements shall be constructed by and under the ‘direction of said board, in accordance with specifications prescribed by said board. In all cases where the cost of local improvements is to be assessed wholly or in part upon the property benefited, the same shall be constructed by independent contract or contracts; but other public improvements may be constructed by day’s labor under the direction of the board.
“ Section 2. Whenever the board of public works shall by resolution order any of the local improvements herein mentioned, the same shall be authorized by ordinance; Avhieh ordinance shall be in form recommended by .the board of public works by indorsement thereon, and shall not be subject to amendment by the city council.
“ Section 3. The board of public works may order the grading, curbing and paving or otherAAÚse improving of the Avhole or' any part of any street or streets, alley or alleys or streets and alleys in the city of Denver, or any one or more of the said improvements. In case of grading only, or of grading and curbing only, the improvements may include the necessary cross-walks; and the board may thereafter, under the
“ Section 4. In case of the • improvement of any street as hereinabove provided, the cost of the improvement, except in the intersection of streets and alleys, and except the share to be paid bystreet railway companies, shall be assessed upon all the lots and lands abutting on the street improved, in proportion as the frontage of each lot or tract of land is to the frontage of all the lots and lands so improved, the sides of corner lots which sides abut on a street so improved being regarded as frontage; Provided, that where the real estate abutting on the street improved consists of lots or lands which are not of substantially equal depth, then the same may be assessed to a substantially equal depth, not less than twenty and not more than one hundred and fifty feet from the street improved, as the same may be determined by the board of public works.”
In sections 35 and 36-of article 3, and in sections 1, 2 and 3 of article 7, the word “ street ” is used, where it is used at all, without qualification or limitation of any kind; and there is nothing in the language where it occurs, or the subjects with which it is associated, to give it any special signification. Therefore, in accordance with the definitions given by the authorities, it means the entire space between the line of the lots on one side and the line of the lots on the other. But were any doubt of this conclusion possible, it would be set at rest by section 4 of article 7. The sense in which the legislature intended the term to be understood is there very clearly indicated. That section provides that the cost of the improvement shall be assessed against the lots and land abutting on the street. To abut is to join, press against, or rest upon. If the width of the street were only the space between the curbs, no lots could abut upon the street. Between the street and the lots would be the space set apart for sidewalk purposes ; the lots would abut upon that space and that space would abut upon the street. But that the lots may abut upon the street, the line of frontage of the lots must be the bound
But counsel for the petitioner point us to some passages in the charter from which they argue that the legislature must have regarded streets and sidewalk areas as things entirely distinct from each other. Before looking into the reasoning by which counsel arrive at their conclusion, we will ascertain what, ,under the provisions of the charter, a sidewalk is. Sections 9, 10, 11, 12 and 13 of article 7 are devoted to the subject of sidewalks. Those sections empower the board of public works to order the construction of sidewalks where none have been constructed, and the reconstruction of sidewalks which have been previously laid. They prescribe the method to be pursued in such construction or reconstruction, and in assessing the cost of the work against the property to which it is chargeable. A sidewalk is spoken of throughout as something to be constructed. To construct is to build or put together, and it is evident that the sidewalk of which the charter speaks is not the naked surface of the ground or the space between the lot line and the. curb line, but that, in accordance with the meaning given to the term by the standard authorities, it is a way, artificially prepared, built or laid upon the surface, and which, no matter of what material it may be composed or constructed, may without impropriety be called a pavement. Counsel has pointed us to section 20 of article 2, in which the powers of the city council are enumerated, and in which it is authorized by ordinance “to open, alter, abolish, widen, extend, establish, grade, pave or otherwise improve and keep in repair streets, avenues, lanes, alleys, parks and other public places, sidewalks, drains and sewers; and to provide for and require the construction of sidewalks; ” and they ask, “ If, when the legislature gave certain powers to the city council and said it had power to * * * grade * * * ‘streets,’the term‘streets’ includes everything from lot line to lot line, why did they go on and use the word ‘ sidewalks ’ ? In other words what sense does it make, if you start out with the proposition that
Section 10 of article 7 contains a provision that in all cases of the construction or reconstruction of sidewalks, the contracts may include all necessary excavations and embankments from lot line to curb line in front of the property improved. This section is used by counsel in support of their general theory, but we are unable to see how any question of importance to the determination of this case is affected by it. We do not think it was intended as a provision for the grading of the sidewalk areas. The excavations and embankments to which it refers do not involve grading in the sense in which the term is used by the charter in providing for the improvement of streets. The sidewalk area, as part of the street, is graded when the street is graded. The construction of sidewalks is separately provided for. If the street has been graded, the sidewalk is laid upon the graded surface. The burdens of sidewalk construction and of street grading are differently distributed; and the section must not be so interpreted as to bring it into conflict with other charter provisions. Our opinion is that the language was intended only to provide for the reduction of the accidental inequalities of the ground to a uniform and even surface, so as to furnish a proper bed on which to lay the walk. We entertain no doubt that a contract, entered into by the city through its proper agencies, and in conformity with the provisions of its charter, for the grading of a street, which uses the term “street” without qualification, is satisfied only by the grading of the entire width of the highway from the line of lots on one side to the line of lots on the other; and that a refusal by the contractor to grade the street except between the curb lines would involve a violation of his contract.
The last position taken for the petitioner is that as the price of the work was payable in monthly installments of eighty per cent of the amount due for the preceding month,
The judgment is reversed, and the cause remanded, with instructions to the district court to permit the answer to be filed, and proceed to a hearing of the case upon its facts.
Reversed.