City of Bartlesville v. Riggs

• Decision Date: 17 November 1925
• Docket Number: Case Number: 16165
• Citation: 114 Okla. 181,1925 OK 931,245 P. 603
• Parties: CITY OF BARTLESVILLE et al. v. RIGGS. et al.
• Court: Oklahoma Supreme Court

1925 OK 931

245 P. 603

114 Okla. 181

CITY OF BARTLESVILLE et al. v. RIGGS. et al.

Case Number: 16165

Supreme Court of Oklahoma

Decided: November 17, 1925

Syllabus

¶0 1. Municipal Corporations -- Validity of Sewer Construction Contract--Irregularity in Estimate of Cost Unknown to Contractors.

Where a city undertakes to establish a sewer district therein and it has followed all the material requirements of the statute pertaining to such formation, and it thereafter enters into a contract for the installation of a sewer system for such district and such contract is free from fraud and collusion and the contractors complete their work under said agreement with the city, and it thereafterwards appears that the city engineer while making the estimate for said work took into consideration the probable discount of the sewer warrants in estimating the cost of such work, and thereby caused said estimate to be increased, but such increase was not shown upon the face of said estimate and the contractors had neither notice nor knowledge that the city engineer had increased the estimate in order to allow a probable discount on such sewer warrants, such act upon the part of the city engineer is not sufficient to cause an annulment or avoid the contract between the city and such contractors.

2. Appeal and Error--Review of Equity Case--Conclusiveness of Findings.

Where the city engineer makes an estimate on a certain percentage for engineering charges and upon trial the court finds that such estimate is excessive, and where the action as presented to the court under the pleadings and proof was one of equitable cognizance, such findings upon the part of the court will not be disturbed unless it was clearly against the weight of the evidence.

3. Judgment Sustained.

Record examined, and held, that same supports the judgment of the court.

Error from District Court, Washington County; H. C. Farrell, Judge.

Action by J. T. Riggs and F. M. Overlees against the City of Bartlesville and others. From the judgment defendants bring error; plaintiffs file cross-appeal. Affirmed.

E. E. Heyl, A. O. Harrison, R. C. Allen, G. A. Paul, and Shipman & Lewis, for plaintiffs in error.

Montgomery & Montgomery, Campbell & Ray, and W. H. Kornegay, for defendants in error.

LESTER, J.

¶1 This cause arose over a sewer contract between the city officials of the city of Bartlesville and the firm of Reed & Wheelock. Under the terms of said contract, Reed & Wheelock agreed to construct a sanitary sewer system in what is known as sewer district No. 14, city of Bartlesville, Okla. A number of taxpayers of said district brought an action in which they sought to have the contract between the city of Bartlesville and Reed & Wheelock be declared null and void. The plaintiff taxpayers sought other relief, which will be hereinafter mentioned.

¶2 A trial was had to the court, and the court found all the issues against the plaintiffs, save and except a reduction in the engineer's fees from 7% to $ 221.70, being the total of the items the engineer was able to remember having expended in connection with the work, exclusive of the work done by the engineers of the city of Bartlesville, who are on the pay roll of the city. Both parties to this action in the court below filed exceptions to the findings of the court.

¶3 The defendants prosecute this appeal to review the action of the trial court and the plaintiffs file their cross-appeal. For convenience the parties will be referred to as they appeared in the court below.

¶4 The plaintiffs sought to set aside the ordinance assessing their property and the property of others within the sewer district for sewer improvements. The suit by the plaintiffs was commenced within 60 days from the passage and approval of the assessing ordinance sought to be set aside.

¶5 The statute in force at the time regulating said assessment was section 471, Rev. Laws 1910, which is as follows:

"No suit shall be sustained to set aside any assessment or certificate issued in pursuance of any assessment or to enjoin the city council or town board from making any improvement, unless brought within 60 days after the passage of the ordinance making such assessment: Provided, that in the event any special assessment shall be set aside or be invalid in whole or in part, the city council or town board may, at any time, in the manner herein provided for an original assessment, proceed to cause a new assessment to be made, which shall have the like force and effect as an original assessment."

¶6 The plaintiffs having presented their case on cross-appeal, we will first dispose of their contentions.

¶7 The plaintiffs in their brief urge that the statute under which the proceedings were had, the contract let, and the assessment made is unconstitutional, and in answer to this contention this court has passed on this particular question adversely to the plaintiff's theory in the following cases: City of Perry v. Davis & Younger, 18 Okla. 427, 90 P. 865; City of Muskogee v. Rambo, 40 Okla. 672, 138 P. 567; Hancock v. City of Muskogee 66 Okla. 195, 168 P. 445; City of Bartlesville v. Keeler, 107 Okla. 14, 229 P. 450.

¶8 The plaintiffs urge that the entire sewer system was advertised for the purpose of obtaining bids thereon, and not in the sections or subdivisions. As to this objection, we find no statutory regulation providing that bids must be submitted either on sectional or subdivision units, and the plaintiffs do not cite any authority in support of their contention on this proposition.

¶9 The plaintiffs also urge that there was not sufficient bids on the proposed work as would justify or warrant the letting of the contract for the entire work. The statute providing for advertising and bidding on said work (Comp. St. 1921, sec. 4405) is in part as follows:

"Upon the completion of the plans and specifications and their adoption by the mayor and council or the board of trustees they shall advertise for sealed bids for the performance of such work, for at least ten days if published in a daily newspaper, or at least two weeks if published in a weekly newspaper, which paper shall be of general circulation in the city, and which notice may contain any reasonable conditions to be imposed by the mayor and council or the board of trustees with reference to the letting of such contract, and may require the giving of a good and sufficient bond for the faithful execution of the work, and for the protection of the city and all property owners against any loss or damage by the negligent execution of such work. The notice shall also advise all parties interested that they may appear and protest against said proposed improvement, or any part thereof. At the time and place specified in the notice, the mayor and council or the board of trustees shall, if they find such improvement necessary and proper, award the contract to the lowest and best bidder for the work, which contract shall in no case exceed the aggregate estimate of costs submitted with the plans and specifications, and shall be subject to the right of the mayor and council or the board of trustees to reject any and all bids and to readvertise for other bids when none of the same are, in their judgment, satisfactory: provided, that where a majority of the property owners in any block petition the mayor and council or the board of trustees for a lateral sewer through or in such block, the advertising for bids shall not be necessary, but the mayor and council or the board of trustees may cause such improvement to be made without such notice."

¶10 The city having accepted the bid of the contractors, Reed & Wheelock, and the price named in said bid not being above the estimate of the city engineer, we hold that such bid and letting thereon, in the absence of fraud or collusion, was not subject to attack.

¶11 It is also urged by the plaintiffs that the contractor knew that the estimate was greater than that allowed by law. From a careful examination of the record, we do not find any evidence supporting this contention.

¶12 The plaintiffs also urge that the costs of the mains cannot be assessed to the lots in the district, but must be borne by the city. Section 464, Revised Laws of 1910, is as follows:

"Except as herein otherwise provided, the construction and maintenance of public sanitary sewers and storm sewers in cities and towns shall be paid for as follows: Mains and submains, of whatever size or extent, shall be paid for by the city or town; laterals shall be paid for by the owners of the property abutting on such laterals, in the manner provided by law for the estimate of cost and assessments for district sewers: Provided, that where, for the purpose of better drainage, or for other reason, a main or submain shall be constructed in any alley or other place where otherwise a lateral would have been constructed, and where such main or submain serves the purpose of a lateral for the property abutting thereon, the owners of such property shall be assessed in amounts equal to that which they would have been required to pay for a sufficient lateral; and that where, for any reason, any private connection is made with a main or submain, instead of with a lateral, the owner of the premises so connected shall pay to the city or town an amount equal to that which he would have been required to pay for a lateral so constructed as to provide similar service; such amounts to be charged for connections with mains and submains or for mains or submains used as laterals to be ascertained by the city or town engineer, or the engineer in charge of such work, and assessed against the property and collected in the manner provided by law in the case of district sewers."

¶13 It appears that the natural course of drainage from this particular sewer district was into Caney river, and that a pipe was laid from said sewer district to the said Caney river in order to carry the drainage from the said sewer district. That part of the...