Masters v. City of Rainier

• Decision Date: 08 January 1917
• Docket Number: 7186.
• Citation: 238 F. 827
• Parties: MASTERS v. CITY OF RAINIER.
• Court: U.S. District Court — District of Oregon

238 F. 827

MASTERS v. CITY OF RAINIER.

No. 7186.

United States District Court, D. Oregon.

January 8, 1917

Robert C. Wright and Beach, Simon & Nelson, all of Portland, Or for plaintiff.

Fred W Herman, City Atty., of Rainier, Or., and Norblad & Hesse, of Astoria, Or., for defendant.

WOLVERTON District Judge.

This is an action to recover on five counts against the city of Rainier. Counts 1 and 3 are based upon separate contracts with the city to construct certain street improvements, for which, it is alleged, as respects the first count, the city agreed to pay Masters the sum of $26,452.40, and as to count 3, $7,064.40, all of which has been paid in warrants except $2,865 under the first contract and $1,692.40 under the second; the balance in each case being the amount sought to be recovered.

The second and fourth counts are predicated upon the same contracts, and it is thereby alleged that the city agreed to pay plaintiff for extra materials furnished and extra work done in connection with the improvements contracted to be constructed. The amount claimed to be due under the second count is $2,385.15, and under the fourth $2,352.85.

The fifth count is for certain work done and performed at the request of the defendant amounting to the sum of $346.

In connection with the first four counts, plaintiff has set forth the judgment of the circuit court of the state of Oregon for Multnomah county, heretofore made and rendered in the case of the city of Rainier against Charles Masters, the plaintiff herein, and the United States Fidelity & Guaranty Company, his surety for fulfillment of the contract, as a bar by way of res judicata to defendant's now controverting plaintiff's demands. The case went to the Supreme Court of the state on appeal, was there affirmed, and its mandate sent down and entered in the circuit court.

The defendant, for a further and separate answer to plaintiff's first and second causes of action, sets forth that the petition for the improvement was not made or subscribed by the owners of a majority of all property abutting upon the streets or portions thereof sought to be improved; that said petition was not immediately published as required by section 5, c. 10, of the charter of the city of Rainier, and was not published until March 22, 1909, the said petition having been filed March 15, 1909; that Ordinance No 118, requiring the police judge to advertise for bids for the improvement, and declaring the expense thereof a charge and lien upon the abutting property, was not passed as required by section 6 of chapter 7 of the city charter, in that the said ordinance was introduced, read a first, second, and third time, and passed all at the same meeting of the common council. The same objection is made to Ordinance No. 133 which authorized the mayor, in behalf of the city, to enter into contract with Masters for making the improvements.

Other matters are alleged, respecting the narrowing of the streets upon which the improvements were made, and the disposition of the warrants issued in payment for the work; but with these we have nothing to do so far as the present controversy is concerned.

For a further and separate answer to plaintiff's third and fourth causes of action, the defendant admits the sufficiency of the petition for making the improvements, but complains that Ordinance No. 119, authorizing the police judge to advertise for bids for making such improvement, and declaring the cost of the improvement to be a lien upon the abutting property, was introduced, read a first, second, and third time, and passed all at one and the same meeting of the common council; and the same is alleged respecting Ordinance No. 133, authorizing the mayor to enter into a contract for making such improvements with Masters. It is further alleged that the common council did not cause immediate notice of the petition to begin, and not until the 22d day of March, 1909, the petition having been filed April 6, 1908.

The same allegations are made in this as in the previous further and separate answer respecting the manner of narrowing the streets and disposing of the warrants issued in payment for the improvement.

The plaintiff, for a reply to the defendant's further and separate answers to plaintiff's first, second, third, and fourth causes of action, sets up: First, that plaintiff was induced to enter into said contracts with the city through representations by the city that the petitions for the improvements in the first instance were sufficient and regular, that the signatures affixed thereto were duly authorized, real, and bona fide, and that the ordinances putting the same into effect were all duly and properly adopted, and that by reason thereof the defendant is now estopped to deny their validity. For a further reply, plaintiff sets up again the judgment made and rendered in the circuit court of the state of Oregon for Multnomah county, in the case of the city against Masters and his surety, and claims that defendant is also estopped to controvert plaintiff's demand as set forth in the first four counts by reason of such judgment. The defendant has interposed a demurrer to these replies, challenging their sufficiency, and the sole questions for decision arise upon the demurrer.

Two questions arise for disposal: One, whether the city is estopped to controvert plaintiff's demands by reason of its having induced the plaintiff to enter into the contracts through its representations that the proceedings of the common council authorizing the contracts were regularly had and duly authorized by charter and ordinance regulations; and, the other, whether the judgment rendered in the case of the city against Masters and his surety constitutes an estoppel or bar to insisting now upon the defenses invoked.

It is settled doctrine of the Supreme Court of Oregon that, where the expense for street improvements is to be paid through assessments upon abutting property, and the municipality fails to observe the requirements of its charter in making the assessments, or is guilty of unreasonable delay in enforcing essential provisions with reference thereto, or in collecting or paying over the funds, the contractor has a right of action against the municipality arising, ex delicto, for the damages sustained, wherein the amount due under his contract, with interest, is the measure of recovery; and this notwithstanding a provision in the contract that he shall look for payment only to the particular fund to be raised through the special assessments. Jones v. City of Portland, 35 Or. 512, 517, 58 P. 657; North Pacific L. & M. Co. v. East Portland, 14 Or. 3, 6, 12 P. 4; Commercial National Bank v. City of Portland, 24 Or. 188, 33 P. 532, 41 Am.St.Rep. 854; Little v. City of Portland, 26 Or. 235, 37 P. 911; O'Neil v. City of Portland, 59 Or. 84, 113 P. 655.

The Supreme Court of Iowa is committed to a like doctrine. Ft. D.E.L. & P. Co. v. City of Ft. D., 115 Iowa, 568, 89 N.W. 7.

The defendant insists, however, that, if the contract for doing the work is invalid for failure of the city through its common council to comply with the provisions of the charter touching the making of street improvements, then no duty to make assessments arises, and the contractor cannot recover by reason of the city's neglect or failure to make such assessments, and thereby to collect the funds with which to pay the contractor.

The proposition seems persuasive, and it extends to the power of the city to act at all. Thus it is complained in the one instance that the owners of a majority of all abutting property had not petitioned for the improvement, and in both instances that the common council had failed to pass properly any ordinances establishing the street districts, or authorizing advertisements for bids for letting the contracts, or authorizing the city to enter into contracts with the contractor for doing the work. The charter inhibits the common council from placing on final passage any ordinance until its next regular or adjourned meeting after the meeting at which the ordinance is introduced. In other words, it inhibits the putting of an ordinance on its final passage at the same meeting of the common council at which it is introduced. And it is averred that the ordinances complained of were introduced, read a first, second, and third time, and passed all at the same meeting. In this respect, the mode becomes the measure of the city's power to do anything by ordinance.

It would seem that the city was wholly without power to act at all in the one instance, if it be true, as...