Chance v. City of Portland

26 Or. 286 | Or. | 1894

Opinion by

Mr. Justice Wolverton.

It is conceded by the plaintiffs that the local assessment now under consideration, and all proceedings pertaining thereto, up to and inclusive of the letting of the contract to Jasper Ward, were and are perfectly regular, and within the legitimate powers of the common council of the City of Portland; but it is contended that the contractor did not make the improvement in all respects in compliance with the ordinance, and that therefore the assessment is void, and the plaintiffs are entitled to a perpetual injunction against the enforcement thereof. It is certainly beyond the power of the common council to make a different kind of improvement from that described in the ordinance, or to contract for one thing and accept something different in its stead, as otherwise all statutory restraints upon the action of the local authorities in such cases would be of no more force or effect than they would see fit to give them. Mr. Elliott, in his work on Roads and and Streets, 414, says that “while the property owners are not parties to the contract, they have a beneficial interest in it, and this interest cannot be divested by the subsequent acts of the local authorities. "Where the contract has been duly awarded, and the work commenced, the highway officers have no right to annul or disregard it. The contract, when once entered into, creates rights which the local officers cannot destroy. Nor can the local officers rightfully dispense with the performance of any material part of the contract, for, as the property owners are the persons who must pay for the improvement, they have the right to demand that the work shall be faithfully and properly done.” And again, at page 438, he says? ‘We suppose that there could not, in any event, be a recovery if it should appear that there was a radical and material departure from the contract in the character oi the work, since it must be true that if the work does not fairly and substantially conform to the provisions of the ordinance or resolution on which the contract is founded, the property owner is assessed without notice, as he could not have notice of any other work than that for which the ordinance, resolution, or order provides.” See also Schumm v. Seymour, 24 N. J. Eq. 147.

A large amount of testimony has been taken to determine the fact as to whether or not the contract for making the improvement has been performed in accordance with the provisions of ordinance number five thousand nine hundred and nine, both as regards the materials used and the manner of doing the work. Much of this testimony is irreconcilably conflicting, and it would be a useless undertaking for us to discuss it in detail, or to consider its relative weight and application, as we are fully satisfied, from a careful and critical review thereof, that the findings of the referee and the court hereinbefore set forth are in accordance with the weight of such testimony. The only particular in which the contract appears not to have been complied with is found both by the referee and the court below in the following language: “Above this layer and constituting the second course (this being the upper four inches in the bottom layer referred to in the petition), was placed smaller gravel, a portion of which was small enough to go through a two-inch ring, and the balance of which averaged from three to four inches, ” and the court properly finds in its substituted finding number fifteen, “that while said improvement was not done in strict compliance with the specifications thereof, it was a substantial performance of the contract therefor, and the ordinance authorizing the same, and was so intended by the contractor, and was accepted by said city in good faith as such.” The referee and the court both further find (conclusion of fact number seventeen): “The officers and agents of the defendant, the City of Portland, acted honestly and in good faith in their supervision of the work, and in the acceptance of the street. ” It may be further remarked that the ordinance provided that such improvements should be completed to the satisfaction of the common council of the City of Portland.

Here, then, is presented the question whether a street assessment can be declared null and void, and its collection perpetually enjoined, when it appears that the conditions and specifications of an ordinance providing for a street improvement for which the assessment was made have been substantially complied with by the contractor in making such improvement; that the officers and agents of the city acted honestly and in good faith in the supervision of the work, and that such improvement was completed to the satisfaction of the common council, and by said common council accepted in good faith. Undoubtedly, under such conditions, where there has been a substantial compliance with the ordinance which prescribes the mode in which the improvement shall be made, and the common council has honestly and in good faith accepted the improvement as satisfactory and completed in accordance with the ordinance, such acceptance is conclusive upon the abutting property owners: Cooley on Taxation (2d ed.), 671; Elliott on Roads and Streets, 416; Town of Elma v. Carney, 9 Wash. 466, 37 Pac. 707; Motz v. City of Detroit, 18 Mich. 515. Indeed, many authorities hold generally that when work has been accepted by the proper authorities of a city, and there is no allegation of fraud or collusion, such acceptance is conclusive evidence that the work was performed according to the requirements of the contract: See Cooley on Taxation (2d ed.), 671; City of Henderson v. Lambert, 14 Bush, 30; Ricketts v. Village of Hyde Park, 85 Ill. 113; Emery v. Bradford, 29 Cal. 83; Joyes v. Shadburn, 13 S. W. 361. But it is not necessary for us to go thus far in the present case. There was a substantial compliance with the ordinance, so that it cannot be alleged that fraud is even implied by reason of there being a wide difference between the work required by the ordinance and the work actually done. There is here no violation of the trust relations which exist between the officers of the municipality and the abutting property holders whose property is charged ■with the assessment. Neither fraud nor collusion is exhibited by the complaint on the part of the officers, and their authority throughout the whole proceedings, as shown by the testimony, appears to have been exercised within the limitation of their powers under the charter, and they have acted at all times in the utmost good faith. The acceptance of the improvement by the common council under these conditions is conclusive upon the defendants. It could not be promotive of good results to hold otherwise, as it would make the courts revisory bodies for every city government within the state, and open wide the doors for contests of this nature upon collateral proceedings like the present. By so doing the courts would usurp a large portion of the administrative powers of municipal governments. They have no such authority, and cannot interfere with the discretionary powers of such governments. These matters of discretion and authority must remain with the officers intrusted therewith under the law without molestation or interference by the courts. It follows that the defendants are entitled to a decree dismissing the complaint, and it is so ordered.

Reversed and Dismissed.