217 P. 65 | Ariz. | 1923
This is an appeal from a judgment taken on demurrer. A demurrer to plaintiffs’ second amended complaint having been sustained by the court on December 4, 1922, and plaintiffs having elected to stand on such complaint, judgment was rendered against them on December 18, 1922. From that judgment plaintiffs appeal.
The appellants sought to enjoin the performance of a certain contract for the improvement of a portion of First Street, in the city ,of Phoenix, on two grounds: First, that the contract for said improvement was void because it was entered into prematurely; and, second, that the contract for said improvement was void because the specifications required the use of materials and methods controlled solely by Warren Brothers Company of Boston, Massachusetts.
The second amended complaint alleges that at the time this action was instituted the plaintiffs were
It is further alleged that the purpose of the city’s action was to secure for Warren Brothers Company a contract to pave said street between points mentioned in resolution No. 751 and to fasten a lien and bonded debt upon the property of plaintiffs and others, owners of property fronting on First Street, and that the action of defendants in entering into the contract occurred before the time provided by statute in which plaintiffs and others similarly situated could file a protest in pursuance of paragraph 1960, Revised Statutes of 1913, had expired, and before the city commission, as in such section provided for, had acted thereon; that on April 6, 1922, the defendants unlawfully attempted to vitalize the contract of April 1, 1922, by an alleged re-execution of it, except a change of date of the beginning and completion of the work, without first obtaining the
Although appellants base part of their argument upon the answer -to the second amended complaint, and appellees consent that this court may take such answer into consideration in passing upon this case, we shall consider only the question raised by the demurrer — Does the second amended complaint set forth facts sufficient to constitute a cause of action?
It is not shown by this pleading that the acts of defendants were premature, that the contract of April 1, 1922, was entered into before the expiration of the protest period. The allegation in paragraph III of the second amended complaint is a pure conclusion of law. It reads:
“That this .action of defendants was had before the_ time provided by statute had expired in which plaintiffs and other protesting frontage property owners could and did file a protest as contemplated and in pursuance of paragraph 1960 of the Revised Statutes of Arizona and before the city commission, as therein provided for, had acted thereon.”
Section 1960 of the Revised Statutes of 1913, as amended by Chapter 52, section 3 of the Session Laws of 1917, provides in part:
“At any time within fifteen days from the date of the first publication of the notice of award of contract, any owner of, or other person having any interest in, any lot or land liable to assessment, who claims that any of the previous acts or proceedings relating to said improvements are irregular, defective, illegal, erroneous or faulty, may file with the clerk of the city council a written notice specifying*322 in what respect said acts and proceedings are irregular, defective, illegal, erroneous or faulty.”
There is no statement in the second amended complaint showing any facts concerning the notice of award of contract, or its time of publication, no statement as to previous irregular, defective, illegal, erroneous or faulty acts or proceedings relating to said improvement on the part of the city. There is nothing but the pleader’s conclusion that the contract between the defendants was entered into prematurely, that is, before the time provided by statute had expired in which plaintiffs and others similarly situated could and did file a protest as contemplated by, and in pursuance of, the statute governing such.
“Facts must be pleaded — conclusions of law will not do — and a demurrer will not confess or admit the latter.” Verde Water & Power Co. v. Salt River Valley Water Users’ Assn, et al., 22 Ariz. 305, 197 Pac. 227.
“The necessity for a statement of the facts essential to the right claimed is not obviated by averments of legal conclusion.” Herr v. Kennedy, 22 Ariz. 141, 195 Pac. 530.
In Parks v. School Dist. No. 1, 22 Ariz. 18, 193 Pac. 838, this court held that allegation of the complaint to the effect that the posting and publication of the notice of the call of an election “was and were not authorized or directed by the board of trustees, . . . as required by law,” was a mere opinion of the pleader as to the requirements of the statute in that respect, and is properly put in issue by a demurrer.
Whether or not the action of defendants in entering into the contract of April 1, 1922, was premature, in that the period for protest had not expired, cannot be determined from the second amended complaint. No statement of fact that would have en
There is no merit in the contention of appellants that the contracts of April 1 and April 6, 1922, are void because Warren Brothers Company wrongfully asserted an exclusive patent on certain materials used by it and others in paving streets in the city of Phoenix and in the matter of bidding for the work of construction on First street was thereby enabled to throttle competition. Paragraph 1974, subdivision 4, Revised Statutes of Arizona of 1913, Civil Code, provides:
“The words ‘paved’ or ‘repaved,’ as used in this chapter, shall be held to mean and include pavement of stone, whether paving blocks or macadamizing, or of bituminous rock or asphalt, or of iron,' wood, or other material, whether patented or not, which the legislative body shall by ordinance adopt.”
This matter has been passed upon by this court contrary to appellants’ contention in two previous cases: Farmer v. Dahl, 19 Ariz. 395, 171 Pac. 130, and United States Fidelity & Guaranty Co. v. California-Arizona Construction Co. et al., 21 Ariz. 172, 186 Pac. 502.
We fail to find, from a careful study of the second amended complaint, any allegation of fact from which it can be ascertained that the law has not been followed, or that plaintiffs have in any way been injured by the acts of defendants.
The judgment is affirmed.
McALISTER, C. J., and ROSS, J., concur.
LYMAN, J., being disqualified, Honorable GEORGE R. DARNELL, Superior Judge of Pima county, was called to act in his place.