Murphy v. City of Albina, 20 Or. 379

Murphy v. City of Albina

20 Or. 379 | Or. | 1891

Strahan, C. J.

— Whether the rulings of the trial court can be sustained, must depend on the charter of the defend*383ant and upon the facts disclosed by the record. The defendant corporation was incorporated by an act approved February 4, 1887. (Laws, 1887,176.) By section 18 of the charter, the council is given authority to make by-laws and ordinances not in conflict with the laws of this state or of the United States, and all necessary provisions for carrying them into effect. Subdivision 6 of the same section confers upon the council power “ to grade, gravel, plank or otherwise improve and keep in repair, highways, streets and alleys, provided, that no property shall be assessed for the construction of such improvements for more than one-half of its last county assessed valuation; * * * and provided further, that in case of a proposed street improvement, when the improvement proposed is to be made at the expense of the property adjacent thereto, thirty days’ notice of such intention shall be given by posting three notices thereof in public places of said city.” This section confers upon the council very full power over the subject matter named in it. It may make the improvements therein named and pay the expenses thereof out of the general fund of the city; or by giving thirty days' notice of such intention, it may tax the adjacent property for such proposed improvement, provided that the assessment shall not be more than one-half of the last assessed county valuation of such property. Under this provision of the charter, we think the city of Albina might, through its officers and agents, render itself liable for work on its streets without an ordinance first passed authorizing the same.

The mayor and common council are the governing body of this corporation. The corporation may act through these officers, or any one of them authorized for the purpose, or it may appoint agents to carry into effect the power of improving streets. It might confer that authority upon the street supervisor, or it might appoint a city surveyor and vest him with authority in the premises; or if work was done in improving the streets, without regular authority by the direction of the mayor and members of the council, and *384afterwards the council accepted the same on behalf of the city, this would be a ratification, and would be equivalent to an original authority and of equally binding force. Whether the work was done and under and by what authority and whether the same was accepted by the council, were all questions which ought to have been submitted to the jury. It appeared upon the trial that the mayor and two members of the council in effect directed the extra work to be done and told the plaintiff to obey the orders of the city surveyor. Assuming that the two councilmen, who were not consulted so far as appears, did not consent to this, still the two that did act with the mayor would constitute a majority of the council. Upon the hearing here it was argued by respondent’s counsel that it must appear that the council met and acted before any liability could arise. Two of the members of the council and the mayor who authorized the work had knowledge of their own acts in directing the work to be done, and when they met and accepted it, it is difficult to see why the city was not thereby rendered liable. The officers of the city directed the plaintiff to render valuable services for it in improving one of its streets which he was then doing under an express contract with it, but the new or increased services were additional and beyond those required by the original contract, which services when performed were accepted and used by the city with the other work performed under the express contract. In such case fair dealing requires that such labor should be paid for when it appears that all concerned acted in good faith.

The ruling of the court in giving and refusing instructions not being in harmony with what is said in this opinion, its judgment must be reversed and the cause remanded for a new trial.