125 P. 200 | Idaho | 1912
This is an appeal from a judgment of the district court confirming the action of the city council of the city of Caldwell, in confirming the assessment of local lateral sewerage improvement district No. 4 of said city. It involves the legal organization of said district, the construction of a sewer system in said district, the assessment of benefits in said district, and the confirmation of such assessments by the city council.
Said city undertook the construction of said sewer system under the provisions of chap. 14, tit. 13, of the Political Code, and particularly under the provisions of sec. 2353, Rev. Codes. The work was carried on to completion and the system turned over to the city as provided by law. An assessment-roll was prepared and submitted to the council and approved by it on the 31st of October, 1910. The action of the council in that regard was appealed from to the district court in and for Canyon county, and the district court confirmed the action of the council in that regard, with the exception of a few minor matters, and this appeal is from the judgment of the district court.
(1) It is first contended that the ordinance of intention passed by said city council’ on June 13, 1910, does not sufficiently describe the general character of the proposed improvement as required by paragraph 3 of sec. 2353, Rev. Codes. See. 3 of said ordinance is as follows: “The character of the proposed lateral sewer system shall be that of gravity according to the plans and specifications now in the office of the city engineer of the city of Caldwell, Idaho.” This court held in Williams v. City of Caldwell, 19 Ida. 514, 114 Pac. 519, that where a city ordinance declaring the intention of the council to organize a sewer district and construct a sewer system states that “the character of the proposed lateral system shall be that of gravity and according to the plans and specifications now on file in the office of the city engineer,” it is a sufficient compliance with the
(2) It is contended that the city engineer did not draw any plans or specifications of said sewer system; that he never resigned as city engineer, and most of the duties of that office were performed by one Richardson, who was not officially appointed, who took no oath of office and who gave no bond.
It appears from the record that the city engineer, Williams, appointed one Richardson deputy city engineer. It also appears that said Williams himself made the preliminary estimate for the bids for the construction of said sewer; that said Richardson performed the duties of city engineer during the construction of the sewer, at the request of the mayor; that he acted as city engineer during that period of time and drew the salary of the engineer for said services, the city engineer being away from the city and engaged in other work. Under the facts of this case it makes no difference whether the minutes of the city council show that Richardson was duly appointed as deputy city engineer or not. The record shows that Richardson acted as and was considered city engineer by the city council and mayor. In any event, he was a de facto engineer and performed the duties of the city engineer. There is no charge of any fraud or anything of that kind in connection with this matter. (28 Cyc. 420; 35 Cyc. 1522; Abbott’s Municipal Corp., secs. 656, 659.) Under the provisions of sec. 2354 the sewer committee has authority to appoint an engineer.
(4) It is next contended that no estimate of the cost of said system was made by the city engineer as was required by sec. 2201, Rev. Codes. There is no evidence in the record to show that the city engineer did not make the detailed estimate required by the provisions of that section. Williams, the city engineer, testified that he believed that he made the preliminary estimates for the bids before he turned the matter over to Richardson, and it appears from the record that Richardson filled the blank in the ordinance, when requested to do so, and placed the amount at $10,000. We think the evidence is sufficient to sustain the finding of the court that such estimates, plans and specifications were made. It is presumed that the officers of the city acted according to law in all matters until the contrary is shown, and it is incumbent upon the appellant to show that no estimate was made and that the city council acted in the matter without the necessary details, which he failed to do.
(5) It is next contended that connections with said system cannot be made in compliance with sec. 14 of Ordinance No. 180. Said section requires sewer-pipes in the yards to be of the best quality of vitrified pipes with cement joints, and “they shall not be laid nearer than two feet on the exterior of the wall nor less than two feet below the surface of the ground, nor will they be allowed in bad or made ground. In all such cases sewers beneath the ground shall be of east-iron pipes.” That provision is construed by counsel for the city to mean that if it is impossible to secure drainage by placing the pipe two feet under the ground, then cast-iron pipe must be used and not vitrified pipe. That construction may be correct, but it seems to us a little strained; but it appears that as some controversy had arisen over the proper construction of that ordinance, the council amended said section of said ordinance by enacting Ordinance No. 192. That ordinance provides, among other things, that .where a sewer is less than two feet below the surface of the ground, cast-iron pipe placed to as great a depth as possible
It .is suggested by counsel that sec. 119 of Ordinance No. 180 does not admit of all persons making' connection with the sewer, for the reason that one-fourth of an inch grade per foot is too great. It appears from the evidence that that refers to pipes in buildings and not to pipes laid from the building to the sewer, and that the latter pipes may have a grade of one-fourth inch to ten feet.
(6) It is next contended that the land embraced in said sewer district is composed of two areas Avhieh are not contiguous, and that the seAverage system of each of said areas has a separate and distinct outlet. The record shows that said tracts have one and the same outlet, and in order to give any force and effect to this objection, it Avould be necessary for the appellant to show that he was in some manner injured by the creation of such district in the manner in which it was created. Counsel seem to assume that the mere formation of this district in the way it was formed precludes the sewer committee from apportioning the assessments equitably, but there is nothing in the record to show that the assessments were inequitably made or not in accordance with the benefits received. The sewer committee evidently concluded that the benefits were about equal and that each property owner should be assessed accordingly. There is nothing in the record to show that appellant was prejudiced by forming the district in the way it was organized. There is no doubt but that a single ordinance may provide for more than one improvement. (See Abbott’s Munic. Corp., pp. 868 (note), and
(7) As to the condition of the sewer. It is contended that the sewer-pipes were not properly laid and are not of sufficient depth in the ground, and that they leak and offensive odors arise from such leakage. There is a substantial conflict in the evidence upon these questions. Several experts in laying sewers testified as to the sufficiency of said sewers for the purposes intended. It appears that there has been considerable feeling over this matter and that at two different times at a certain point the sewer had been stopped up. At one time a gunny-sack filled with straw or hay was thrust into the eight-inch sewer-pipe, and at another, a piece of oil-cloth, large enough to choke the sewer, had been thrust into it, and that at those times the cement in some of the joints of the sewer-pipe had been broken and certain ground flooded. This was not caused by the defective construction of the sewer system. The evidence shows that the sewer-pipes came to the surface of the ground in places. But there is evidence in the record to show that in such places the
The great weight of the testimony shows that the contract price for the construction of the sewer was reasonable in amount. No fraud is alleged and no fraud is shown, and it is not for this court to say that the contract price was too high. (See Bellevue Water Co. v. City of Bellevue, 3 Ida. 739, 35 Pac. 693.)
It appears «from the testimony that two members of the board of county commissioners of Canyon county and also members of the board of health in that county made an examination of said sewer, and they testified that they found it in good shape so far as its construction was concerned, and in their opinion it was a benefit to all of the property in said sewer district.
Appellant filed his protest against the confirmation of the assessment on October 22, 1910. The sewer system at that time was nearly completed, and it appears that the first intimation said council had that any person was dissatisfied was when said protest was filed. Appellant knew what the estimated cost of construction of said sewer system was, and he certainly knew that he would have to pay his proportionate part of it if he had lots in that district. If the contract price was within the estimated cost, appellant cannot now be heard to complain that the total cost of his sewer is too high. He ought to have appeared on June 27, 1910, and entered his protest at that time against the estimated cost if he thought it excessive. On October 22, 1910, he filed his protest, as above stated, against the confirmation of the assessment, and it is contended by counsel for appellant that the provisions of sec. 2354, Rev. Codes, clearly point out to the contractor how and when he may safely proceed with his work. The provisions referred to are as follows:
*73 “No contract herein provided for shall go into effect, in so far as the committee or city, town or village are concerned, to be binding npon it or them, until the assessment herein provided for shall be confirmed; and in the event the assessment or the assessment-rolls herein provided for shall not be confirmed, then such contracts shall be of no further force or effect.”
Under those provisions the contractor takes his chance if he proceeds with his contract before the assessment is confirmed, and if it is not confirmed, then the contract is of no further force or effect. But in the case at bar, the assessment was confirmed, and therefore said contract has force and effect. If the contractor wanted to take his chances and not await such confirmation, he, of course, could proceed. It ivas not absolutely necessary for him to await the action of the council in that regard. The fact that he did proceed would not of itself render the contract of no force or effect, and when the council confirmed the assessment, the contract was in full force and effect.
Upon the material questions raised on this appeal there is a substantial conflict in the evidence, and there is substantial evidence to support the findings of fact and judgment entered by the trial court. The judgment must therefore be affirmed, and it is so ordered, with costs of this appeal in favor of the respondent city.
Petition for rehearing denied.