Dennis v. City of Willamina

• Decision Date: 16 May 1916
• Citation: 80 Or. 486,157 P. 799
• Parties: DENNIS ET AL. v. CITY OF WILLAMINA.
• Court: Oregon Supreme Court

157 P. 799

80 Or. 486

DENNIS ET AL. v. CITY OF WILLAMINA.

Supreme Court of Oregon

May 16, 1916

Department 1.

Appeal from Circuit Court, Yamhill County; H. H. Belt, Judge.

Action by V. R. Dennis and another, copartners, against the City of Willamina. Judgment for plaintiffs, and defendant appeals. Affirmed.

This is an action to recover money. The plaintiffs, as partners, on September 15, 1913, entered into a contract with the defendant, a municipal corporation, whereby they engaged to furnish the material and perform the labor necessary to improve B street in the city of Willamina from Main street to Fourth street, according to the provisions of Ordinance No 67 and in conformity with the plans and specifications adopted for such work. The contract provided that the city engineer of Willamina should decide all questions that might arise under the agreement, and that his decision should be final and conclusive between the parties. For completing the improvement the plaintiffs were to receive $3,464.55, and upon the city engineer's report, 85 per cent. of the value of the material furnished and expense of the labor performed, as the work progressed, was to be paid them by the defendant and the remainder when the improvement was accepted. The defendant also stipulated that for the purpose of creating a fund, in order to pay the plaintiffs ordinances would be enacted and all other necessary acts performed that might be required for imposing the assessment upon and collecting it from the property abutting upon the improvement in strict accordance with the provisions of the charter and under the conditions of the Bancroft Bonding Act. The parties on October 13, 1913, entered into another contract for the improvement of Commercial street from the south line of Main street to the north line of East Water street, according to the provisions of Ordinance No. 68 and in conformity with the plans and specifications prepared for the work. This contract contained the same clauses as the preceding agreement and provided that for making the improvement the plaintiffs were to receive $1,134.24, the partial and final payments to be made as herein-before specified. As the improvements progressed, the defendant issued to the plaintiffs, upon reports of the engineer, for the work done and material furnished for B street, city warrants amounting to $2,943.12, and on account of Commercial street $798.40. The final reports of the engineer made August 7, 1914, stated that the work under the contracts had been performed to his satisfaction, and that there remained due from the defendant to the plaintiffs on account of the B street improvement $515.88, and on the Commercial street work $364.54. These final reports of the engineer were neither accepted nor rejected, and on March 5, 1915, this action was commenced to recover $4,621.94, the entire contract price and some extras, as damages by reason of the defendant's failure to enact the ordinances necessary to impose the assessment upon the real property benefited by the improvment, so as to create the fund with which to pay the plaintiffs' demand. The cause being at issue the plaintiffs submitted evidence tending to substantiate the averments of the complaint, but the defendant was not permitted to offer any evidence to prove the affirmative allegations of its answer to the effect that neither the materials furnished nor the work performed had been supplied or done in accordance with the provisions of the ordinances or in conformity with the plans and specifications. The trial court, considering the averment of the reply that the defendant for nearly seven months had neither accepted nor rejected the final reports of the engineer, was estopped to assert that the material was inferior or that the work had not been properly performed, directed a verdict for the plaintiffs for the sum of $4,928.49, and, judgment having been rendered thereon, the defendant appeals.

Frank Holmes, of McMinnville, for appellant. Frank S. Grant, of Portland, for respondents.

MOORE C.J. (after stating the facts as above).

The defendant was first incorporated by an act of the Legislative Assembly. Special Laws Or. 1903, p. 376. It is stated in the brief of plaintiffs' counsel that the original charter was substituted by an act of incorporation adopted by the legal voters of the municipality December 7, 1908, pursuant to an exercise of the initiative power. From an examination of the transcript before us it is not conclusively obvious that the amended charter was received in evidence. The brief of defendant's counsel quotes several sections of the new charter, which excerpts correspond with parts of a pamphlet found with the transcript. The book referred to is entitled "A Proposed Act to Incorporate the City of Willamina Oregon, to be Submitted to the Legal Voters of Said City for Their Approval or Rejection at the Regular General Election to be Held on Monday, the Seventh Day of December, 1908." It has been ruled that the courts of Oregon will not take judicial notice of initiative charters of cities and towns in this state. Birnie v. La Grande, 153 P. 415; Chan Sing v. Astoria, 155 P. 378; Rusk v. Montgomery, 156 P. 435. Notwithstanding the uncertainty of the bill of exceptions in the particular mentioned, the cause will be reviewed here as it was tried in the lower court, on the assumption that the initiative charter had been, as it probably was, admitted in evidence. The answer admitted and the defendant's counsel, at the trial, conceded that the plaintiffs were partners, and the defendant was a municipal corporation. There can be no doubt that the city of Willamina was duly reincorporated by the legal voters at an election held for that purpose, and the municipality is therefore empowered to improve the streets within its borders in the manner prescribed by its initiative charter.

It is contended by defendant's counsel that errors were committed in receiving in evidence, over objection and exception, ordinances numbered 67 and 68 of the city of Willamina under which the improvements of the streets were made. It is argued that these enactments were not passed pursuant to notice, and that they do not provide for assessing the costs of the improvements upon the abutting property.

By the amended charter the council of the city of Willamina is empowered to order the improvement of parts of streets. Section 51. No such improvement can be undertaken without first giving seven days' notice thereof by publication in a newspaper of the city of Willamina. Section 52. This notice must, by order of the council, be given by the marshal as ex officio street commissioner, and shall specify with convenient certainty the kind of improvement to be made and the time within which it must be undertaken and when completed. The council shall meet at a time mentioned in the notice to hear and determine all objections to the making of the proposed improvement. Section 53.

Municipal enactment No. 67 is entitled "An ordinance providing for the macadamizing of B street in the city of Willamina, Or., between Main street and Fourth street, and charging and assessing the costs thereof upon and against the property abutting and adjacent thereon." A part of section 1 of the ordinance reads:

"Whereas, the common council of the city of Willamina, Oregon, did on the 29th day of July 1913, by vote authorize and instruct the city marshal to give due and legal notice to all concerned that said city council intended and contemplated

the improvement of B street between Main street and Fourth street in said city of Willamina, and the said city marshal did in compliance with said vote and order of said council, give notice on the ____ day of ____ 1913, that said council of Willamina, Oregon, would on the 11th day of August, 1913, hear any and all complaints and objections against the said proposed improvements on said B street between Main street and south side Fourth street; and

"Whereas, on the 11th day of August 1913, the said council did hear all and any complaints and objections against the said improvement of said street; and after a full and complete hearing, it was found by the said common council of the city of Willamina, Oregon, that there were no objections thereto; and

"Whereas, the city surveyor and engineer has duly and completely surveyed said B street and filed his plat, plans, and specifications of said proposed improvements, and the same has been adopted and approved by vote of the common council of the city of Willamina: It is

"Resolved, by the common council of the city of Willamina, Oregon, that the said B street be improved, leveled, graded, surfaced, and filled in accordance with following specifications for constructing a macadam roadway."

Here follows a detailed statement of the entire improvement mentioned. Another clause of section 1 of the ordinance reads:

" Acceptance of the Work. The engineer shall be the sole judge as to the manner of construction and acceptance of the work. In all cases where a dispute arises or in case of an interpretation of these specifications, the word of the engineer shall be final and conclusive and binding on both the contractor and the city. The work shall be begun and prosecuted at such points, in such order and in such manner as the engineer may direct."

Aside from the title, hereinbefore quoted, the ordinance contains no provision that the improvement shall be made at the expense of the abutting property. No copy of the notice referred to in ordinance No. 67 appears in the bill of exceptions.

Enactment No. 68 is entitled:

"An ordinance providing for the macadamizing of Commercial street in the city of Willamina, Oregon, between Main street and Water street, and charging and assessing the

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