Massengill v. City of Clovis
| Decision Date | 22 August 1928 |
| Docket Number | No. 3305.,3305. |
| Citation | 270 P. 886,33 N.M. 519 |
| Parties | MASSENGILLv.CITY OF CLOVIS et al. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Under the provisions of chapter 152, Laws 1919, and previous legislation, and the decision in Ellis v New Mexico Con. Co., 27 N M. 312, 201 P. 487, engineers' and attorney's fees are properly chargeable as a part of the costs of a paving improvement, and, as such, are properly included in a local assessment against abutting property owners.
No question of sound public policy prevents the payment of engineers and attorneys upon a basis of a percentage of the cost of a pavement program.
The fact that an attorney for a city in a paving program is disqualified to represent the city is not relevant in a proceeding to enjoin the paving program. Alleged professional misconduct must be dealt with in another proceeding.
Where the question of the confiscatory character of a local assessment for a paving improvement is solely a question of fact, and the court below finds that the same is not confiscatory, the finding will not be overturned, where it is founded upon substantial evidence.
Appeal from District Court, Curry County; Brice, Judge.
Suit by C. A. Massengill against City of Clovis and others. Judgment of dismissal, and plaintiff appeals. Affirmed.
See, also, 267 P. 70; 268 P. 786.
No question of sound public policy prevents the payment of engineers and attorneys upon a basis of a percentage of the cost of a pavement program.
Sam G. Bratton, of Albuquerque, for appellant.
Otto Smith and Hall & McGhee, all of Clovis, for appellees.
Appellant and others brought suit for an injunction against the defendants to restrain them from proceeding with a paving program, including a large number of blocks in the city of Clovis. On final hearing a preliminary injunction theretofore issued was dissolved, a permanent injunction was refused, and the cause was dismissed, from which judgment appellants, plaintiffs below, have appealed. Various propositions are presented.
[1] 1. The court, in refusing the injunction, held that the fees of engineers and attorneys were properly included by the city as a part of the costs of the improvement, and, as such, were properly chargeable against the abutting property along with the contract price of the work to be done by the contractor. In regard to this matter it may be said that no reason can be discerned why fees for engineers and attorneys should not be properly chargeable as a part of the cost of the improvement. The engineer is required to cross-section the street, estimate the amount of material to be brought in or removed from the street, establish grades for proper drainage, superintend the work of paving, etc., compensation for which is as much a part of the proper cost of the work as the actual laying of the pavement, and is as properly chargeable to abutting property owners. Attorney's services in preparing the contract for the improvement, and attending to the interests of the city in case of question between it and the contractor, preparing and superintending the service of notice required by the statute, and many other duties, are as properly a part of the cost of the improvement as the actual pavement and as properly chargeable to abutting property owners. In this connection it is to be observed that, as a matter of practical administration of our pavement laws, compensation for engineers and attorneys has been frequently charged against the abutting property as a proper part of the costs of the improvement. However, it is to be noted that in these cases there is seldom sufficient involved to authorize appeal to the courts for relief, and this fact may account for the absence of cases on this point. However that may be, the question is whether, under our statute, the city authorities have the power to include such fees as a part of the costs chargeable to abutting property owners. The statutes governing the matter in this case were first enacted as chapter 42, Laws 1903, which were compiled as sections 3665-3671, Code 1915. Some of these sections were amended by chapter 152, Laws 1919, but in no particular involved in this case. The pertinent provisions of the latter act and of the act of 1903, still in force, are as follows:
“Section 1. That section 1, chapter 42, of the laws of the 35th Legislative Assembly of the Territory of New Mexico (Codification of 1915, sections 3665, 3670 and 3671), be and it is hereby amended to read as follows: That whenever the city council of any city, town or village, whether incorporated under general or special laws, or the board of trustees of any town or village in the state of New Mexico, shall be of the opinion that the interest of said city, town or village require that any street or streets, alley or alleys, or any part thereof, within the limits of said city, town or village be graded, gravelled, paved, macadamized or in any manner improved, such city council or board of trustees shall make a provisional order to the effect that such street or streets, alley or alleys or part thereof shall be so graded, gravelled, paved, macadamized or improved, and shall order the city engineer, or some other competent engineer, to cross-section said street or streets, alley or alleys or part thereof and to make an estimate of the total cost thereof, and an estimate of the number of cubic yards of material necessary to be used in the grading thereof, or to be excavated therefrom.
Sec. 2. That section 2 of chapter 42, of the Session Laws of the 35th Legislative Assembly of the Territory of New Mexico (Codification of 1915, sec. 3666), be, and it is hereby amended to read as follows:
Upon the filing of the report of such engineer, said city council or board of trustees shall set a time and place at which the owners of property abutting on such street or streets, alley or alleys, or part thereof so to be improved, or any other persons interested therein, may appear before said city council or board of trustees and be heard as to the propriety and advisability of making such improvements, and as to the costs thereof, and as to the manner of payment therefor, and as to the amount thereof to be assessed against the property abutting thereon. * * *”
“After such hearing, said city council or board of trustees shall determine as to the advisability of so grading, gravelling, macadamizing or otherwise improving such streets or alleys or parts thereof and shall determine the kind and character of such improvements so to be made, and shall proceed to advertise for bids for the doing of the work therefor, and shall enter into a contract for the doing of such work and the furnishing of all necessary materials to the lowest bidder.”
Section 3668, Code 1915 (chapter 42, Laws 1903).
* * *”
After an examination of these statutes we were first inclined to the opinion that there was no provision contained in the same for the inclusion in the local assessment of anything over and above the contract price for the work. Thus in section 3668, Code 1915, it is provided that the governing body of the city, after determining to make the improvement, “shall proceed to advertise for bids for the doing of the work therefor, and shall enter into a contract for the doing of such work and the furnishing of all necessary materials to the lowest bidder.” And in section 3, c. 152, Laws 1919 (section 5, c. 42, Laws 1903; section 3669, Code 1915), it is provided that after the making of the contract the city council “shall determine what portion of such work shall be paid by such abutting property, and the owners thereof, and shall assess to each lot,” etc., “its proportionate share of such total amount.” If the statute is to be interpreted to mean that the city council may make the local assessment for only such sum as the contract price for the work amounts to, then it will be impossible to include therein the cost of the materials furnished by the contractor. This is evidently not the meaning to be deduced from the statute. The use of the word “work” in this statute was evidently intended to be synonymous with the word “improvement,” in which case all of the costs of the improvement, including the sums payable to the...
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