48 P. 433 | Or. | 1897
Opinion by
This is an action for the recovery of three certain city warrants drawn upon the treasurer of the City of Portland, and signed by its mayor and auditor, of the aggregate value of $862.50. The defendant, who is the auditor of the city, interposed two defenses: First, that he withholds and detains the warrants in pursuance of certain provisions of Ordinance No. 9183, which are, in effect, as follows:—
Section 1. Where any work is done under contract with the city for street or sewer improvements,
Section 2. Any person, firm, or subcontractor furnishing materials or labor, actually used or employed in such improvements, at the request of the contractor, may at any time before warrants are delivered as provided for in section 1 file his or their claim therefor in writing with the auditor, stating the amount thereof, which shall be withheld from the amount due such contractor until such claim is adjusted and agreed upon as provided in the following section.
Section 3. If the amount of the claims is agreed upon and adjusted by the claimant and contractor, the auditor shall deliver warrants in accordance with the adjustment; otherwise he shall retain them for a period not to exceed twenty days from the date of the acceptance of the work, when he shall deliver the same to the contractor, unless the claimant shall, previous to the expiration of said twenty days, commence an action upon the claim, and cause a writ of attachment to be issued and notice thereof in writing to be served upon the auditor, in which case he shall withhold the warrants until the rights of the respective parties are finally determined.
Section 5. All contracts for such improvements shall provide that the same shall be subject to the provisions of the ordinance.
And second, it is alleged, by way of estoppel, that in pursuance of advertisements for bids for the improvements, with notice that the contract therefor was to be let subject to the provisions of the foregoing ordinance, plaintiff bid for the -work, and thereafter, on April 7, 1896, entered into a contract with the city whereby it was provided, among other things, that the contract was made and entered into subject to the provisions of ordinance No. 9183, which was expressly made a part of the same, and at. the same time entered into bond with the city for the faithful performance of the specifications of said contract subject to the provisions of said ordinance. A demurrer was interposed to the affirmative matter of the answer, which was sustained; and, defendant refusing to plead further, judgment was entered for plaintiff, from which defendant appeals.
In support of the demurrer, it is urged that the city council was without power or authority, under the charter of the City of Portland, to enact ordinance No. 9183, and that it is, therefore, ultra vires and void. Section 118, of the charter, is cited as containing the only provisions to be found which in any way lend support or authority for the enactment, and it is
It is said that municipalities, as well as individuals,
But it is insisted that the ordinance contravenes the recognized policy of the state, which exempts municipalities and their officers from attachment and garnishment. Ve do not think that the ordinance was intended to make the city the subject of garnishment. It merely prescribes the conditions under which the contractor shall become entitled to the warrants which constitute his compensation for stipulated services, and in the meantime the auditor is directed to withhold them. It was surely competent for the city to impose a condition that the contractor’s compensation should not fall due for five days after the completion of the work; and, if for that length of time, why not for twenty days ? And, in view of its moral obligation to see that persons who have furnished labor and materials for the use of the muniei
Reversed.