151 P. 728 | Or. | 1915
Opinion by
The testimony of the city engineer, who had charge of the improvement which was made, is to the effect that beneath the surface, along the line of the proposed retaining wall, shale rock was found, thereby rendering it impossible to ascertain, by drilling or boring into the earth, the depth required for a proper foundation, which could have been determined only by
The evidence shows that the. engineer’s estimate of the probable cost of the improvement contained a detailed statement of the kind of work to be performed, specifying, as far as involved herein, the number of cubic yards in each class, and also, as will be remembered, included a clause which reads: “All quantities are more or less.” The city, having advertised for bids for making the improvement, received from the firm to whom the contract was awarded a proposal to do the work on the unit basis as to each item specified in the engineer’s estimate, a few of which particulars, as set forth in the proposal, will be stated thus: Earth excavation, 2,065 cubic yards, at 75 cents, $1,548.75; concrete retaining wall, 341.8 cubic yards, at $11, $3,759.80; solid rock, 88 cubic yards, at $4, $352. These items, together with the others contained in the proposal, aggregated $12,905.83; that sum being an offer to do the work for $746.17 less than the estimate. "When the work was completed, however, the city engineer certified to the common council that the contractors, in making the improvement according to the plans and specifications, had performed cubic yards of work as follows: Excavation, 4,384; concrete retaining wall, 1,591.5; and solid rock, 254. These items, designed as illustrations of the method pursued, together
“A contract for a street improvement which,” says a text-writer, “gives to the superintendent of streets the power to increase or diminish the cost of improvement, after the contract has been entered into, by requiring a greater or less amount of material for its completion as he shall determine, renders the assessment invalid”: Hamilton, Spec. Assess., § 447.
To the same effect, see, also, Dillon, Mun. Corp. (5 ed.), § 244; City of Chicago v. Wilder, 184 Ill. 397 (56 N.E. 395).
This rule is based on the legal principle that an agent cannot delegate his functions to a subagent, unless he is expressly authorized so to do; and as a municipal charter vests in a common council delegated power to determine the kind of improvement to be made, that legislative body cannot legally commit any part of such authority to another officer. Thus in Bolton v. Gilleran, 105 Cal. 244 (38 Pac. 881, 45 Am. St. Rep. 33), it was held that a resolution of the board
In Perine Contracting etc. Co. v. City of Pasadena, 116 Cal. 6, 9 (47 Pac. 777, 778), a contract for the improvement of a street was let pursuant to specifications, a clause of which read:
“But the contractor shall put in such extra concrete as the superintendent of streets and the city engineer may require, and in such places and in such form as they may designate. For all such extra concrete the contractor shall be paid at a pro rata of contract price for the actual quantity laid.”
With the bid certified checks were deposited, but, contending that the language last quoted rendered the agreement void, the contractor refused to perform the work, and commenced an action to recover the amount of the deposit; the checks having been cashed. It was held that the action would lie; the court saying:
“Here there is left to the superintendent of streets and the city engineer power to increase the cost of work to an indefinite extent. A discretion lodged in the board alone is sought to be devolved upon these officers, and all means are withheld from the property owner of determining what may to him be the ultimate cost of the finished work.”
To the same effect, see, also, Stansbury v. White, 121 Cal. 433 (53 Pac. 940); Chase v. Treasurer of Los Angeles, 122 Cal. 540 (55 Pac. 414).
“If, in the judgment of the city engineer, it shall be necessary to form any portion of the foundation * * of. concrete, said concrete shall be paid for as extra work at the price per cubic yard mentioned in the contract.”
It was ruled that the excerpt last referred to did not invalidate the agreement, if the character of the ground where the sewer was to be laid was such that a reasonably accurate estimate of the probable quantity of material required to complete the work could not be made from an inspection of the surface of the earth at that place.
In State v. Town of Cuttenberg, 38 N. J. Law, 419, the engineer’s estimate of the probable cost of improving a street was $28,038.45. In doing the work, more rock was found in the grade than anticipated, necessitating a deeper excavation in order to secure an earth surface for the roadway, thereby increasing the expense to $35,854.13, which sum, with interest and incidental expenses, was augmented to $44,002.41, an increase of 56 per cent over the estimate, and it was held that such excess did not defeat the assessment. In that case no discretion appears to have been given to or vested in any subordinate officer. The assessment and the proceedings subsequent thereto, however, were set aside on the ground of a failure to give notice.
In State v. Jersey City, 58 N. J. Law, 144 (35 Atl. 950), a preliminary assessment of $20,336 was made for the proposed improvement of a street, the actual cost of which was $24,423.94, of which latter sum
In Ireland v. City of Rochester, 51 Barb. (N. Y.) 414, an estimate of $25,980 was made for a street improvement, the actual cost of which was $3,319.92 in excess of that sum. In a suit to enjoin the enforcement of the entire demand, it was contended that, under a clause of the charter which provided that no contract should be let for making a public improvement at a price greater than the estimate thereof, no' part of such excess could be legally charged against the property benefited; but it was held that the limitation applied only to work included in such calculation, and did not preclude the council from causing other work to be done in addition to that embraced in the estimate, if they found it necessary in order to complete the work undertaken. The judgment was reversed, however, on the ground of a want of notice.
The plaintiffs could have had no adequate notice that such a charge could reasonably be expected, and, this being so, the decree should be affirmed; and it is so ordered.
Affirmed.
Rehearing Denied.