Dement v. City of Caldwell

• Decision Date: 31 May 1912
• Citation: 125 P. 200,22 Idaho 62
• Parties: J. A. DEMENT, Appellant, v. CITY OF CALDWELL, Respondent
• Court: Idaho Supreme Court

125 P. 200

22 Idaho 62

J. A. DEMENT, Appellant, v. CITY OF CALDWELL, Respondent

Supreme Court of Idaho

May 31, 1912

SEWER DISTRICT-ORGANIZATION OF-ORDINANCE OF INTENTION-DESCRIPTION OF IMPROVEMENT-REFERENCE TO PLANS AND SPECIFICATIONS-COST OF CONSTRUCTION-PRELIMINARY ESTIMATE OF-DE FACTO OFFICER-PRESUMPTION-SEWER-PIPES-CONNECTION WITH BY LOT OWNER-TWO NONCONTIGUOUS TRACTS IN ONE DISTRICT-EQUITABLE ASSESSMENTS-EVIDENCE-SUFFICIENCY OF-CONTRACT-CONFIRMATION OF ASSESSMENT.

(Syllabus by the court.)

1. Where a city ordinance that declares the intention of the city council to organize a sewer district and to construct a sewer system provides as follows: "The character of the proposed lateral sewer system shall be that of gravity according to the plans and specifica- tions now in the office of the city engineer of the city of Caldwell Idaho," held, a sufficient compliance with the provisions of subd. 3 of sec. 2353, Rev. Codes, which require that the ordinance of intention shall state "the general character of the proposed sewerage system and sewerage disposal works," and that the reference in the ordinance to the plans and specifications is sufficient to give notice to all parties interested of the character of the proposed system.

2. Under the evidence in this case, held, that the plans and specifications of said sewer system had been properly prepared and were on file in the office of the city engineer at the time fixed for the hearing of protests against the organization of such district, and that the engineer who prepared said plans and specifications and superintended the construction of said system was at least a de facto city engineer and performed the duties of city engineer.

3. The evidence held sufficient to sustain the findings of the court that proper estimates, plans and specifications were made.

4. The presumption is that the officers of a city act according to law in matters pertaining to their office until the contrary is shown.

5. A gross estimate of the cost of the construction of a sewer system inserted in the ordinance of intention is sufficient.

6. The burden of proof is on the party who attacks an assessment and it will be presumed, in the absence of evidence to the contrary, that the official acts connected therewith were performed regularly and in substantial compliance with the provisions of the statute.

7. Where it is ascertained that under the provisions of an ordinance proper connection cannot be made by lot owners with the sewer system, such ordinance may be amended or changed so as to provide a reasonable method for such connection.

8. A single ordinance may provide for more than one improvement and a single sewer district may consist of two noncontiguous tracts of land, and as it does not appear from the record that appellant was injured by having these tracts included in one sewer district, he has no cause of complaint.

9. Sec 2354, Rev. Codes, provides, among other things, that in event the assessment or assessment-rolls therein provided for shall not be confirmed, then the contract for the construction of sewers shall be of no force or effect. Under that provision the contractor took his chances on proceeding to construct sewers prior to the confirmation of such assessment; but when the council did confirm the assessment, such contract was in full force and effect.

APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.

Proceedings to prevent the confirmation of the assessment or assessment-roll in sewerage district No. 4, city of Caldwell. Judgment for the city. Affirmed.

Judgment affirmed, with costs of this appeal in favor of the respondent city. Petition for rehearing denied.

Smith & Scatterday, and Rice, Thompson & Buckner, for Appellant.

The requirement that the ordinance declaring the intention to make the improvement shall contain a description of the proposed improvement is found in the statutes of many of the states. (San Jose Imp. Co. v. Auzerais, 106 Cal. 498, 39 P. 859; Schwiesau v. Mahon, 128 Cal. 114, 60 P. 683; Fay v. Reed, 128 Cal. 357, 60 P. 927.)

The ordinance of intention must contain a sufficient description of the work, or all the proceedings based thereon will be invalid. (McDonnell v. Gillon, 134 Cal. 329, 66 P. 314; Williamson v. Joyce, 137 Cal. 107, 69 P. 854, 140 Cal. 669, 74 P. 290; Lambert v. Cummings, 2 Cal.App. 642, 84 P. 266; Crouse v. Barrows, 156 Cal. 154, 103 P. 894; City of Stirling v. Gault, 117 Ill. 11, 7 N.E. 471.)

The resolution is the initial step, and by it alone is jurisdiction acquired to subsequently order the work done. (Bolton v. Gilleran, 105 Cal. 244, 45 Am. St. 33, 38 P. 881; Bay Rock Co. v. Bell, 133 Cal. 150, 65 P. 299.)

The land embraced in said sewer district is composed of two areas which are not contiguous. This action is unwarranted, because a property owner in one of these areas may be compelled to pay his share of the cost of the other area and the cost of construction may be more expensive than his own. (Church v. People, 179 Ill. 205, 53 N.E. 554.)

H. E. Wallace, and John J. Plowhead, for Respondent.

It does not make any difference whether the minutes of the city council show that Richardson was appointed deputy city engineer or not. They do show that he was appointed as such by Williams at the request of the mayor, that he was considered as such by the city council and paid by them accordingly. In any event, he was de facto city engineer. (28 Cyc. 420, 423; 35 Cyc. 1522; Abbott, Mun. Corp., sec. 656.)

The evidence shows conclusively that the council, instead of setting out in a general way the general character of the sewer as provided by statute in their ordinance of intention, adopted the plans and specifications in the beginning, made reference to them in their ordinance of intention, and subsequently the sewer committee adopted the same in toto. The result was that the appellant and others, instead of having only a general description of said sewer on which to base their protests, had a full and complete set of plans and specifications. The council gave the appellant more than the statute requires, and for this he should not complain. (Haughawaut v. Raymond, 148 Cal. 311, 83 P. 53; Williams v. City of Caldwell, 19 Idaho 514, 114 P. 519.)

The regularity of an official act will be presumed unless such act is shown to be irregular. (Page & Jones, Taxation by Assessment, secs. 1450, 1466.)

An assessment is presumed to be valid until the contrary is shown. (28 Cyc. 1167, 1180.)

A gross estimate is sufficient. (Platt v. City of Payette, 19 Idaho 470, 114 P. 25; Page & Jones, Taxation by Assessment, secs. 494, 816.)

"A single ordinance may provide for more than one improvement." (Abbott, Mun. Corp., pp. 868n, 1107n.)

"If to add together the cost of different sewers laid on different streets and to apportion the aggregate cost upon the property fronting on any of such sewers results in assessment which is not materially in excess of the benefits conferred upon any tract of property, such assessment is not invalid." (Page & Jones, Taxation by Assessment, sec. 573; citing Village of Hinsdale v. Shannon, 182 Ill. 312, 55 N.E. 327, and other cases.)

The record shows that the contract price for the construction of the sewer was reasonable in amount.

No fraud is alleged in the appeal and no fraud is shown, and there is no ground on which to predicate a constructive fraud, so that the court cannot go behind the contract. (Bellevue Water Co. v. City of Bellevue, 3 Idaho 739, 35 P. 693.)

SULLIVAN, J. Stewart, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This is an appeal from a judgment of the district court confirming the action of the city council of the city of Caldwell, in confirming the assessment of local lateral sewerage improvement district No. 4 of said city. It involves the legal organization of said district, the construction of a sewer system in said district, the assessment of benefits in said district, and the confirmation of such assessments by the city council.

Said city undertook the construction of said sewer system under the provisions of chap. 14, tit. 13, of the Political Code, and particularly under the provisions of sec. 2353, Rev. Codes. The work was carried on to completion and the system turned over to the city as provided by law. An assessment-roll was prepared and submitted to the council and approved by it on the 31st of October, 1910. The action of the council in that regard was appealed from to the district court in and for Canyon county, and the district court confirmed the action of the council in that regard, with the exception of a few minor matters, and this appeal is from the judgment of the district court.

(1) It is first contended that the ordinance of intention passed by said city council on June 13, 1910, does not sufficiently describe the general character of the proposed improvement as required by paragraph 3 of sec. 2353, Rev. Codes. Sec. 3 of said ordinance is as follows: "The character of the proposed lateral sewer system shall be that of gravity according to the plans and specifications now in the office of the city engineer of the city of Caldwell, Idaho." This court held in Williams v. City of Caldwell, 19 Idaho 514, 114 P. 519, that where a city ordinance declaring the intention of the council to organize a sewer district and construct a sewer system states that "the character of the proposed lateral system shall be that of gravity and according to the plans and specifications now on file in the office of the city engineer," it is a sufficient compliance with the terms of subd. 3 of said sec. 2353, Rev. Codes, which requires that the ordinance of intention shall state the ...