Irelan v. Portland

179 P. 286 | Or. | 1919

BEAN, J.

1. The first contention made by counsel for plaintiffs is that the time stipulated in the contract for the completion of the work had expired and the work not being finished, the contract ceased to have any validity. The first question is, had the contract expired? It provides that the work shall be performed in accordance with the plans and specifications therefor, and completed by the first day of November, 1911; the contract also provides for damages as provided for in Ordinance No. 19,745 for any delay beyond the first day of November, 1911. This ordinance which was made a part of the contract also provides that:

“The Executive Board may further for unnecessary delay or delinquency on the part of the contractor declare a forfeiture of any such contract, and provide for the completion of the same by the City at the expense of the contractor.”

It is alleged on the part of the city that the contract required the work to be done on or before the first day of November, 1911, unless delays were occasioned by certain things in the contract mentioned in which case the contractor should have as many days additional time as were lost by such delays, and unless the executive board should grant an extension of time to the contractor. The matter of the rescission of the contract was referred to the city attorney. That official was informed by the city engineer as follows:

“I notified the contractor that this office would not permit the improvement until the proper underground work was installed, nor would I allow them to tear up the street by grading during the'winter season, for the reason that Milwaukie Street is the only road leading to Sellwood, Milwaukie and the southeast district, and the grading of the street during the winter would leave the people south of Holgate Street without means of getting into the city.”

The contract contains no provision making time of the essence of the contract, or creating an automatic forfeiture for a failure to complete the work at the appointed time. Section 397 of the Charter discloses inter alia that:

“No delays, mistakes, errors or irregularities in any act or proceeding in the improvement of a street or the construction of a sewer or drain shall prejudice or invalidate any final assessment, but the same may be remedied by subsequent and amended acts or proceedings. ’ ’

2. The council refused to rescind the contract and thereafter extended the time for the completion of the work as stated above. It does not appear that the time for the completion of the work, according to all the stipulations of the contract, had expired when such time was extended. The city would not be justified in forfeiting the contract when the delays in the execution thereof were by the request of the city official in charge of the work. It appears that the work was postponed on account of laying water-mains, gas-mains and sewer-pipes, and also by reason of winter weather, and delayed on account of the traffic and also paving between the double street railway tracks, and that thereafter the executive board extended the time for the completion of the work. It is not shown that the contract was illegal: Ritchie v. City of Topeka, 91 Kan. 615 (138 Pac. 618); Hellar v. Tacoma, 44 Wash. 250 (87 Pac. 130); Washington Paving Co. v. Tacoma, 78 Wash. 282 (138 Pac. 870); Mayor and City Council of Baltimore v. Raymo, 68 Md. 569 (13 Atl. 383). After notice to the property owners and an opportunity to be heard thereon, the executive board had jurisdiction to determine whether the contractor substantially performed the obligations of his contract. The board did not lose jurisdiction to accept the improvement because the same was not completed on the date first appointed in the contract: Cormack v. Cormack, 82 Or. 108 (160 Pac. 380); Lawrence v. City of Portland, 85 Or. 586 (167 Pac. 587).

3. It is suggested by counsel for plaintiffs that the services of the city engineer and his assistants in performing the engineering work pertaining to the street should not be taxed as a part of the cost of the improvement for the reason that these officials were paid regular monthly salaries by the city. The rule that services rendered by municipal officers who are compensated by regular salaries should not be considered as a part of the cost of a municipal improvement was formerly based upon the fact that the law authorizing the improvement did not provide that such incidental expenses should be charged against the property benefited: Smith v. City of Portland, 25 Or. 297 (35 Pac. 665); Board of Commissioners v. Fullen, 118 Ind. 158 (20 N. E. 771). By Section 394 of the Charter of Portland, it is specifically enacted that:

“The contract price based upon the estimate of the City Engineer, the costs of rights of way and expenses of condemning land, and a sum not to exceed five per cent of the contract price as the cost of advertising, engineering, and superintendence, shall be deemed to be the cost of every sewer or street improvement.”

Under this Section it is proper for the City of Portland to tax a sum not exceeding 5 per cent of the contract price, as the cost of advertising, engineering and superintendence to be paid by the owners of the property benefited, although city officers who were paid a regular salary did the engineering and superintending of the construction: Hamilton on Special Assessments, § 525; People v. City of Kingston, 39 App. Div. 80 (56 N. Y. Supp. 606); Burns v. Duluth, 96 Minn. 104 (104 N. W. 714). The actual cost of the engineering work for the improvement, the plans and specifications and the superintendence of the construction of the pavement are legitimate parts of the cost of the improvement.

4. It is claimed by the plaintiffs that the city officials arbitrarily added 5 per cent of the contract price without regard to the cost of the items mentioned. It is clear that the Charter provides that the actual cost for the engineering, etc., not exceeding the limit named, shall be deemed a part of the cost of the improvement. It appears that a straight 5 per cent of the contract price was added thereto for such incidental expenses, no account of the work having been kept by the city. In Burns v. Duluth, 96 Minn. 104 (104 N. W. 714), the city levied 10 per cent of the contract price to cover “the expenses of making survey, plans and specifications, and superintendence” of the work. The trial court reduced the amount to actual expenses thereof. This was upheld upon appeal. In the present case testimony as to the actual cost of the work was introduced. Plaintiffs’ testimony in regard to the engineering and advertising and the defendants’ testimony relating to the superintendence of the work approximate the cost thereof with some degree of accuracy. The Circuit Court made no finding in regard to the same. Considering all the evidence in regard thereto which under the circumstances is necessarily an estimate, it appears to us that the cost of the engineering, superintendence and advertising amounted to the sum of $4,653.11, which sum should be taxed as a part of the cost of the improvement making the contract price $130,812.20 plus the cost of the engineering, etc., $4,653.11, aggregating $135,465.31 as the total cost of the improvement for which plaintiffs should pay their proportionate share.

5. It is next contended by counsel for plaintiffs that the city council failed to “hear and determine” the objections made by plaintiffs to the preliminary assessment. The Charter (Section 394) gives the owners of property which is affected by the proposed assessment, the right to make objections to the apportionment in writing to the city council within ten days from the first publication of notice of such apportionment of assessment, and requires any such objection to be heard and determined by the council pursuant to the notice, before the passage of any ordinance assessing the cost of the improvement against the property benefited. A hearing or an opportunity to be heard is absolutely essential: Stuart v. Palmer, 74 N. Y. 183, 185 (30 Am. Rep. 289); Rogers v. Salem, 61 Or. 321 (122 Pac. 308).

6. After the objections were filed by plaintiffs, considerable time intervened before the council acted upon the report of the committee. It should be remembered notice was given by publication and by mailing to the property owners stating that the proposed assessment had been made and was on file with the auditor subject to examination and objection to the apportionment might be made in writing to the council and filed with the auditor within ten days from the first publication of the notice, and that such objection would be heard and determined by the council before the passage of an ordinance assessing the cost of the improvement. The notice is dated December 28,. 1912. A similar notice has been upheld in Paulson v. City of Portland, 16 Or. 450 (19 Pac. 450, 1 L. R. A. 673; Id., 149 U. S. 30, 37 L. Ed. 637, 13 Sup. Ct. Rep. 750); King v. Portland, 38 Or. 402 (63 Pac. 2, 55 L. R. A. 812), affirmed in 184 U. S. 61 (46 L. Ed. 431, 22 Sup. Ct. Rep. 290.) . On January 8, 1913, the proposed assessment and objections thereto were placed before the council. The matter was referred to the street committee. No further action was taken until after the restraining order which had been issued in the case of Sherrett v. City of Portland, 75 Or. 449 (147 Pac. 382), was vacated. Section 394 seems to contemplate that the property owners who wish an oral hearing upon their objections will attend the regular meeting of the council, which is held upon a date fixed by ordinance, and ask for a hearing thereof. It nowhere appears in the record that the property owners offered to submit a further written statement or any oral proof in support of their objections. The principal question of fact raised by the objections related to the assessment for the catch-basins or inlets. It would naturally be supposed that all of the records in regard to the former assessments for the inlets opposite the plaintiffs’ property were accessible to the council, and that the street could be examined by the committee, and that the council was sufficiently acquainted with the facts relating thereto without any additional information. It appears that the former inlets in front of the plaintiffs’ property were assessed not alone to plaintiffs’ land, but to the different parcels of property in the sewer district, hence the auditor deemed it equitable for the plaintiffs to pay their proportional part of the other inlets constructed when the street was paved. It does not appear that plaintiffs were required to pay any more than their just contribution in this respect. They had ample opportunity to be heard further before the council if they had desired such additional hearing.

7, 8. It should appear somewhere in the record of the proceedings of the council or the assessment ordinance that the council determined any issue raised by the objections of the property owners to the preliminary assessment made by the auditor. If the issue raised be one of law, it is sufficient if the minutes show that it has been overruled. If an issue of fact be so raised-there should be a finding of the council thereon, either in the record or ordinance. The finding is not required to be made with the same technical precision required in a-decree or judgment of a court. It is sufficient if it shows that the question has in fact been heard and determined by the council and the result of the decision. If an objection involves a question of fact, it cannot be summarily disposed of by a general order overruling it: Hughes v. City of Portland, 53 Or. 370, 390, (100 Pac. 942). In this instance it appears from the minutes of the council that it was found by that tribunal that the apportionment of the assessment for the improvement of the street was equitable and “that the facts stated in the objections so far as the same apply thereto are not true.” This brief statement was in effect a finding in regard to the objections of plaintiffs; that the prices were not excessive and that the cost of the improvement was not in excess of the benefits to each lot; that the lots of plaintiff had not theretofore been assessed for catch-basins or inlets which were put in front of these lots when the sewer was put in, but only for their proportionate share for such inlets in the street, taking them all into consideration. The finding made by the council upon the question of fact raised was sufficient. As to the question in regard to the price of the patented pavement and the letting of the contract therefor, it is only necessary to refer to the case of Johns v. Pendleton, 66 Or. 182 (133 Pac. 817, 134 Pac. 312, Ann. Cas. 1915B, 454, 46 L. R. A. (N. S.) 990), where the matter is fully discussed. The city officials had no authority under the charter to add to the contract price more than the actual cost of the engineering, advertising and superintendence. In so doing the council exceeded its jurisdiction and to that extent the assessment is void; therefore, a decree will be entered modifying the decree of the lower court, and reducing the total cost of the improvement to $135,465.31, a proportionate part of which should be assessed against plaintiffs’ property. The equities of this suit require the parties to pay their own costs.

Modified.

McBride, C. J., and Johns and Bennett, JJ., concur.