Caldwell v. Village of Mountain Home

• Court: United States State Supreme Court of Idaho
• Citation: 29 Idaho 13,156 P. 909
• Parties: J. W. CALDWELL, Appellant, v. THE VILLAGE OF MOUNTAIN HOME et al., Respondents
• Decision Date: 21 April 1916

156 P. 909

29 Idaho 13

J. W. CALDWELL, Appellant,
v.
THE VILLAGE OF MOUNTAIN HOME et al., Respondents

Supreme Court of Idaho

April 21, 1916

CITIES AND VILLAGES-SEWER DISTRICTS-PLEADING-CHANGE IN PLAN-CONTRACT-LOWEST BIDDER.

1. Certain ordinances of the village of Mountain Home, together with the estimate, plan and outline therein referred to, examined and held to be sufficient to conform to the provisions of sec. 2353, Rev. Codes, as amended, which require a city council, or board of village trustees, before or during the construction of a sewer system or sewage disposal works, the cost of which is to be assessed and levied upon the property to be benefited thereby, to first pass an ordinance declaring its intention to construct such system, or works, stating, among other things, the specific boundaries of the proposed district so that it may be plainly determined therefrom what property or properties are to be included therein; also the general character of the proposed system, or works, and the estimated cost thereof.

2. While it is a well-settled rule that pleading an instrument by attaching a copy to a complaint or an answer as an exhibit thereto does not tender an issue or involve an assertion of the truth of the statements and recitals contained in the exhibit, it does constitute an allegation of the existence of the instrument at the time and place and for the purpose alleged.

3. The general rule that a demurrer admits the truth of all material and relevant facts which are well pleaded does not apply to facts which appear unfounded by a record incorporated in the pleading, or by a document referred to, nor to general averments contradicted by more specific averments.

4. A change in the plan of construction of a sewer system and sewage disposal works which does not increase the cost and which has not resulted, and will not result, in injury to anyone, and particularly to the appellant, does not constitute such a departure from the plan referred to and described in the ordinance of intention as will render the proceeding void.

5. A property owner who has failed to protest against the creation of an improvement district, as by statute provided he might do, or against the inclusion of his land therein, or the exclusion of that of others therefrom, must be held to have waived any right [29 Idaho 14] he had to object to the district as constituted, and cannot enjoin the payment for the improvement upon the ground that his property was included while that of others similarly situated was not.

6. The law which governs the letting of contracts for the construction of improvements provided for in chap. 14, title 13, of the Political Code is to be found in sec. 2354, Rev. Codes, and does not require the committee having the work in charge to let it to the lowest responsible bidder, and the fact that it did not do so, but awarded it to another, does not affect the obligation to pay for the improvement.

[As to who are lowest bidders, see note in 50 Am.St. 492]

APPEAL from the District Court of the Fourth Judicial District, for Elmore County. Hon. James R. Bothwell, Judge.

Suit to enjoin the construction of, and payment for, a sewer system and disposal works. Judgment for defendants. Affirmed.

Judgment affirmed. Costs awarded to respondents.

W. C. Howie, for Appellant.

The warning ordinances must particularly describe the works to be constructed, must be clear and specific, and, above all, must be clear, definite and not misleading, so that the taxpayer may be able to determine, either from the ordinance itself or from it and the plats or other data specifically referred to in the ordinances, just what is proposed to be constructed. The provisions must not be conflicting, or misleading, nor such as will either mislead or deceive the people into believing that the system will be one thing, while the system to be constructed differs therefrom in any material matter. (Williams v. City of Caldwell, 19 Idaho 514, 114 P. 519; Dement v. City of Caldwell, 22 Idaho 62, 125 P. 200; Platt v. City of Payette, 19 Idaho 470, 114 P. 25; Coughanour v. City of Payette, 26 Idaho 280, 142 P. 1076; Ostrander v. City of Salmon, 20 Idaho 153, 117 P. 692; Gurley v. City of New Orleans, 124 La. 390, 50 So. 411; Ladd v. Spencer, 23 Ore. 193, 31 P. 474; Dyer v. City of Bandon, 68 Ore. 406, 136 P. 652; Bay Rock Co. v. Bell, 133 Cal. 150, 65 P. 299; Lambert v. Cummings, 2 Cal.App. 642, 84 P. 266; Williamson v. Joyce, 137 Cal. 107, 69 P. 854; Haughawout v. Raymond, 148 Cal. 311, 83 P. 53; Crouse v. Barrows, 156 Cal. 154, 103 P. 894; Barber Asphalt Co. v. Crist, 21 Cal.App. 1, 130 P. 435; Chase v. Trout, 146 Cal. 350, 80 P. 81; City of Lawrenceville v. Hennessey, 244 Ill. 464, 91 N.E. 670; Holden v. City of Chicago, 172 Ill. 263, 50 N.E. 181; City of Jackson v. Williams, 92 Miss. 301, 46 So. 551; Whittaker v. City of Deadwood, 23 S.D. 538, 139 Am. St. 1076, 122 N.W. 590; Coulter v. Phoenix Brick & Con. Co., 131 Mo.App. 230, 110 S.W. 655; Barber Asphalt Co. v. O'Brien, 128 Mo.App. 267, 107 S.W. 25; Fellows v. Dorsey, 171 Mo.App. 289, 157 S.W. 995.)

If a change was made, which would injure any of the parties to be affected, it would render it void. (Barton v. Kansas City, 110 Mo.App. 31, 83 S.W. 1093; In re Scranton Sewer, 213 Pa. 4, 62 A. 173; Church v. People, 179 Ill. 205, 53 N.E. 554, 174 Ill. 366, 51 N.E. 747; Gardner v. City of Chicago, 224 Ill. 254, 79 N.E. 624.)

Where the law requires the contract submitted to competitive bids, if not let to the lowest responsible bidder, it is void. (People v. City of Buffalo, 84 N.Y.S. 434; In re Delaware & H. Land Co., 8 N.Y.S. 352; Fourmy v. Township of Franklin, 126 La. 151, 52 So. 249; Armitage v. City of Newark, 86 N.J.L. 5, 90 A. 1035; Miller v. City of Oelwein, 155 Iowa 706, 136 N.W. 1045.)

J. G. Watts, for Respondents.

"The general rule that a demurrer admits the facts well pleaded does not apply to facts which appear unfounded by a record incorporated in the pleadings, or by a document referred to." (3 Cyc. 337.)

No objection was raised by plaintiff, or by any other person to the boundaries of District No. 2, at the hearing before the board of trustees, when objections to the ordinance of intention were heard. The boundaries of said district were clearly defined in the ordinance, and the plaintiff should have presented his objections to the board. (Hildreth v. City of Longmont, 47 Colo. 79, 105 P. 107; Kansas City v. Richards, 34 Mo.App. 521.)

A special assessment cannot be defeated upon the ground that the improvement was poorly or improperly constructed, unless the departure is such as to make the improvement a substantially different one from that provided for in the ordinance. (Chicago v. Sherman, 212 Ill. 498, 72 N.E. 396; Warren v. Riddell, 106 Cal. 352, 39 P. 781; Shreve v. Cicero, 129 Ill. 226, 21 N.E. 815; Eustace v. People, 213 Ill. 424, 72 N.E. 1089; Chicago v. Ayers, 212 Ill. 59, 72 N.E. 32; Petter v. Allen, 21 Ky. Law Rep. 1122, 54 S.W. 174; Kansas City v. Askew, 105 Mo.App. 84, 79 S.W. 483.)

"A property owner who stands by and permits an improvement to be made is usually held to be estopped from attacking the proceedings." (28 Cyc. 1014, 1085.)

"A city which was advertised for bids for the construction of sewers is not bound to accept the lowest bid made, in the absence of a requirement to that effect in its charter, the statute, or an express agreement to do so." (Starkey v. City of Minneapolis, 19 Minn. 203; People v. Croton Aqueduct Board, 49 Barb. (N. Y.) 259; Dillon, Municipal Corporations, 5th ed., sec. 811.)

The prevailing rule is that the determination of the municipality as to which is the deserving bid, in the absence of fraud or abuse of discretion, will not be disturbed by the courts. (McQuillin, Mun. Corporations, sec. 1238; Clapton v. Taylor, 49 Mo.App. 117; People v. Kent, 160 Ill. 655, 43 N.E. 760.)

MORGAN, J. Budge, J., concurs. Sullivan, C. J., sat at the hearing but took no part in the decision of this case.

OPINION [156 P. 910]

[29 Idaho 16] MORGAN, J.

This action was commenced by appellant upon behalf of himself and others who are owners of property situated in local sewer improvement districts numbered 1 and 2 of the village of Mountain Home, or in one of such districts, which is liable for taxation for the purpose of constructing and maintaining a system of sewers and sewage disposal works therefor. The purpose of the action is to enjoin the respondents, the village of Mountain Home, the members of its board of trustees, its sewer commission, its clerk and treasurer, and the engineer and contractors who had in charge the [29 Idaho 17] construction of the sewer system and disposal works, from constructing the same and from paying, and receiving payment therefor, and to restrain the members of the board of village trustees and their successors in office from permitting any cellars, basements or other excavations to be drained into the system if constructed.

The respondent appeared and demurred to the complaint upon the grounds: 1. That it is ambiguous, unintelligible and uncertain;...