City of Bartlesville v. Keeler
| Decision Date | 23 September 1924 |
| Docket Number | Case Number: 13432 |
| Citation | 107 Okla. 14,1924 OK 767,229 P. 450 |
| Court | Oklahoma Supreme Court |
| Parties | CITY OF BARTLESVILLE et al. v. KEELER et al. |
¶0 1. Municipal Corporations -- Contract for District Sewer Construction--Validity of Proceedings.
Where an ordinance is passed by the legislative body of the municipality, and shows on its face the plain intention to carry out the provisions of the statute relative to the construction of a district sewer, although it may be defective in detail, if the same is published, as provided by the statute, and is sufficient to give the property owners notice that a district sewer is to be constructed and will be constructed unless the statutory per cent. of proprietors located in the district protest against the same, and no protests are filed, but the sewer is constructed without objection by the property owners, such ordinance is sufficient to give the city authorities jurisdiction and power to make a valid and binding contract for building the sewer.
2. Same -- Determination of Benefits to Property--Conclusiveness.
The question of benefits to accrue or likely to accrue on properties charged with a lien for the payment of the cost price of the construction of district sewers is legislative in its nature, and the determination thereof by the legislative branch of the municipality is conclusive on the courts. Newman et al. v. Warner-Quinlan Asphalt Co., 71 Okla. 284, 177 P. 375.
3. Same--Validity of Contract -- Defective Estimate by Engineer.
The only method provided by law to make public improvements such as the construction of a district sewer, involved in this action, is by contract. The statutes applicable prescribe the preliminary safeguards, among which is the making of the plans and specifications, and the estimate of cost by the engineer. The estimate of the engineer, when approved by the council, is sufficient to answer the requirements of the statute relative thereto, though the amount of the estimate may have been reached by the engineer by taking into consideration an element not a proper cost to be considered; but the proceedings thereafter taken on faith of such estimate do not stand upon the same basis as in case where no estimate of the engineer is made at all; but such estimate sufficiently complies with the statute, to make the contract based thereon a valid obligation, unless there be other reasons invalidating it.
4. Same -- Contractor Not Chargeable with Error of Engineer.
The contractor has nothing to do with the estimate required by the statute, and when the same is submitted by the engineer to the city council, and by it approved, and advertisement for bids to be made, contractors have a right to offer to perform the work at stipulated prices. If the price offered at such competitive bidding by one of the bidders is accepted, and contract made, and the work done as provided by such contract, no error or mistake on the part of the engineer as to what should or should not have been considered in making up his estimate, and which element is not disclosed on the face of the estimate itself, can in any wise invalidate the contract, or prevent the assessment to pay same in the absence of fraud, collusion, accident, or mistake on the part of the successful bidder in bringing same about.
5. Same -- Sewers -- "Natural Course of Drainage"--Extension Beyond District.
Section 465, Rev. Laws 1910, among other things, provides for the connection of district sewers with public sewers, other district sewers, or with the natural course of drainage. In the instant case, the "natural course of drainage," and the feasible outlet was beyond the limits and bounds of the sewer district, and into Caney river. Held, that such outlet having been declared necessary by the council, not only the expense of constructing the sewer within the district, but the expense of constructing the same beyond the bounds of the district, is a proper charge upon the property in the district, and is a local improvement thereof, and the total cost should be apportioned and liens fixed upon the property of the district, as provided by law.
6. Same--Reimbursement of City for Extra Expenses.
Section 469, Rev. Laws 1910, authorizes the city to reimburse itself the expense incurred by it in building a district sewer which is in addition to the contract price of the work. Where the amount of such cost incurred by the city is drawn in question, and after trial of the issue, a court of competent jurisdiction finds a specified sum is sufficient to reimburse the city, and the conclusion of the trial court is not clearly against the weight of the evidence, its judgment will not be disturbed.
7. Same--Sewer Contract Sustained.
The "contracts" in contemplation of the public improvement statutes authorizing the construction of district sewers such as here, subject only to substantial compliance with the statutory preliminary provisions, are not intended to be of less dignity than other instruments referred to as contracts. The same must not only be made in substantial compliance with the statute, but when so executed, their enforceability must be recognized by the courts. Such contracts cannot be made by the courts, but must be made by officers authorized to make the same. Courts cannot strike them down in whole or in part, except for reasons alleged and proven, which move the arm of equity to do so. Record in the instant case examined, and held that the preliminary resolution and proceedings were in substantial compliance with the law, and the judgment of the trial court should be reversed, except as specified in the body of the opinion.
O. A. Harrison, Shipman & Lewis, G. A. Paul, Rittenhouse & Rittenhouse, McPherren & Hannah, and R. C. Allen, for plaintiffs in error.
W. H. Kornegay, George, Campbell & Ray, and Montgomery & Montgomery, for defendants in error.
¶1 This action grows out of a sewer contract made by the city officials of the city of Bartlesville, Okla., in January, 1921. The questions of law urged as growing out of the record, both by the plaintiffs and the defendants, are not without difficulty, but we think that most of the questions raised by the pleadings, and presented by the record, are solved by rules established by this court. The city of Bartlesville prosecutes this appeal. The city is joined, however, in the appeal by the contractors who built the sewer in sewer district No. 13 of said city, and whose contract compensation therefor is materially affected by the judgment of the trial court. The plaintiffs in the lower court, who are the defendants in error here, file a cross-petition in error. We think that it is unnecessary to separately discuss the questions presented by the cross-petition in error and the petition in error. There is little dispute about the facts as disclosed by the record. The plaintiffs, as property owners and taxpayers in sewer district No. 13 of the city of Bartlesville, brought this action to have vacated and set aside an ordinance levying an assessment according to the area of the lots located in said sewer district, and to enjoin an assessment as against the property. The suit was instituted sometime after the work was completed.
¶2 The plaintiffs contend that the ordinance of necessity, being ordinance No. 978, passed November 18, 1920, did not give the city officers any power to make the contract here in question. No authority is cited in support of this contention. The said ordinance creates sewer district No. 13, prescribes the bounds thereof, by reciting the streets surrounding the same. Section 2 of the ordinance directs the engineer to prepare plans, specifications, and estimates of cost of this work, based on the materials specified, and the denominations, character, material, etc., of the sewer line to Caney river. It also provides the cost shall be assessed against the district. Sections 465, 468, and 469, Rev. Laws 1910, provide for creating sewer districts. The ordinance, we think, is sufficiently broad and definite to comply with the provisions of the statute authorizing creation of sewer districts, and authorizing the approval of the estimate, plans, and specifications and advertisement for bids, and making contract for the construction thereof.
¶3 We hold that where the ordinance as passed by the legislative body of the municipality shows on its face the plain intention to carry out the provisions of the statute relative to the construction of a sewer system, for a particular district, although the ordinance is defective in detail, if the same is published as provided by the statute, and is sufficient to give the property owners notice that improvements are about to be constructed, and will be constructed unless the property owners protest against the same, and no protests are filed, but the property owners permit the work to proceed, that such ordinance is sufficient to give the city authorities jurisdiction to make the contract, and the property owners cannot attack the assessment to pay for such improvements on such alleged defect or irregularity. This court, speaking through Mr. Justice Williams, in the case of Kerker et al. v. Bocher et al., 20 Okla. 729, 95 P. 981, among other things, said:
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