72 Wash. 56 | Wash. | 1913
This action was commenced by twenty-four property owners within an assessment district, to enjoin the city of Spokane from collecting a special assessment for the grading and paving of Arthur street and Newark avenue. The Spokane Asphalt Macadam Paving Company, a corporation, the contractor, with leave of court, intervened and joined in defending the action. Prom an order of dismissal, the plaintiffs have appealed.
The record shows that, with two exceptions, the owners of all property abutting on Arthur street and Newark avenue between Ivory and Third avenues petitioned for the improvement, using a printed form which reads as follows:
“The undersigned owners of property fronting upon Newark and Arthur between Ivory and Third Ave. . . respectfully petition your honorable body to cause said streets to be improved within said limits at the expense of the owners of the property, in accordance with section 61, city charter, said improvements to consist of grading the same to the established grade, the full width thereof; and by building-sidewalks on both sides thereof, said grade to be as per diagram, to be made by the city engineer.”
At the time the petition was filed, a typewritten slip had been pasted over that portion of the above excerpt following the words “city charter,” causing the petition to read as follows :
“Respectfully petition your honorable body to cause said streets to be improved within said limits at the expense of the owners of the property in accordance with section 61, city charter; said improvements to consist of paving same with ‘Oileroid’ pavement on a macadam foundation, according to the specifications drawn and now on file in the office of the city engineer; cost of same not to exceed $1.50 per square yard; curb to be made of cement.”
Without stating the conflicting evidence, which we have carefully examined, we conclude that it sustains the findings made. The situation seems to have been that the appellants petitioned for an oileroid macadam pavement of limited cost, and that they have obtained the pavement for which they petitioned. Evidence of expert engineers, who testified on behalf of appellants and also on behalf of respondents, was to the effect that such a pavement would necessarily be inferior in quality and usefulness to other well known street pavements such as asphalt or brick. When the pavement for which appellants petitioned was constructed, it did not meet their expectations, and being dissatisfied, they now seek to avoid payment of the assessment, although, as shown by the evidence, the contractor has done the work in substantial compliance with the contract and specifications. The power and authority to determine all questions relating to the per
In the case last cited, the supreme court of Oregon has stated the rule in language which we regard as especially pertinent to the instant case, and from which we will quote at considerable length. Speaking through Mr. Justice Wolverton, the Oregon court said:
“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*61 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.”
Appellants are disappointed in the street improvement, but from the evidence we conclude that they have obtained the identical improvement for which they petitioned; that the contractor has completed it in accordance with the specifications to the satisfaction of the city engineer; that no fraud
The judgment is affirmed.
Parker, Ellis, and Gose, JJ., concur.