McEwen v. City of Coeur D'Alene

• Decision Date: 05 May 1913
• Citation: 23 Idaho 746,132 P. 308
• Court: Idaho Supreme Court
• Parties: S. H. MCEWEN et al., Respondents, v. CITY OF COEUR D'ALENE, a Municipal Corporation, Appellant, JOHN T. WOOD, Mayor, et al., Respondents, and WARREN CONSTRUCTION COMPANY, a Corporation, Appellant

132 P. 308

23 Idaho 746

S. H. MCEWEN et al., Respondents, v. CITY OF COEUR D'ALENE, a Municipal Corporation, Appellant, JOHN T. WOOD, Mayor, et al., Respondents, and WARREN CONSTRUCTION COMPANY, a Corporation, Appellant

Supreme Court of Idaho

May 5, 1913

MUNICIPAL CORPORATIONS-COUNCIL-POWERS-DISCRETION-PAVING-ORDINANCE-INTENTION-CHARACTER OF IMPROVEMENT-PUBLICATION OF NOTICE-PATENTED PAVEMENT-BIDDING COMPETITIVE-REVENUE.

1. Sec 2238, Rev. Codes, as amended by Laws of 1911, p. 266, in subd. 5, and paragraph 4 of subd. 6, gives to municipalities and city councils the power to lay out, establish, open and improve streets and alleys and to create special improvement districts, and paragraph 4 of subd. 6 authorizes and empowers the city council to pass two ordinances: First, a resolution or ordinance declaring its intention to make such improvement and stating in such resolution or ordinance the name of the street or alley to be improved, the points between which such improvement is to be made and the general character of the proposed improvement, and the estimate of the cost of the same, and that the cost is to be assessed against the property abutting, fronting, contiguous or tributary, etc and, second, an ordinance providing for the establishment of a local improvement district, for the assessment of the abutting, contiguous or tributary lands and lots and the payment of other expenses provided for in the ordinance. Such provisions are intended to give the city council exclusive control of the streets and highways within the city, and the grading, paving and improvement of streets may be directed by the council either upon petition or by affirmative vote of either three-fourths or four-fifths of the city council.

2. Under the provisions of sec. 2238, Rev. Codes, as amended by Laws of 1911, p. 266, the city council is clearly authorized to make specifications and plans for the entire improvement intended and invite bids and let the contract to the lowest bidder upon the plans and specifications adopted by the council.

3. The resolution or ordinance of intention mentioned in paragraph 4, subd. 6 of sec. 2238, is for the purpose of giving notice to the property owners, who will be subjected to costs and assessments, of the intention of the council, and the property owners are given the right to protest against the proposed intention of the city council, and the council are given power to act on the protest and may accept the same or, by a vote of three-fourths (or in case there are only five regular members of the city council or trustees then four-fifths) of the members of said council or board of trustees, reject the same, and proceed further with the work.

4. Paragraph 4, subd. 6 of sec. 2238, Rev. Codes, as amended provides that in the ordinance of intention the city council shall declare its intention to make such improvement and shall state the general character of the proposed improvement. Held, that the "general character of the proposed improvement" does not mean that a special particular, minute or detailed description of the work should be stated, but that a general statement should be made pertaining to a whole class or order; belonging to a whole rather than a part; and that the legislature did not intend that the ordinance of intention should provide in detail the system the council would adopt in providing for and carrying out the improvement, but only to declare a liability upon the part of the city when it directs the paving of a street or some portion of it upon which abuts property held by private parties and subject to taxation or special assessment for the purpose of paying for such improvement, and leaves it optional with the council whether it should adopt any system of universal application or pursue any plan which it may deem best suited to the improvement contemplated at a given time.

5. Sec. 2238, Rev. Codes, as amended, Laws of 1911, p. 266, vests power in the city council to determine the character and kind of pavement and the material to be used, and under such authority the council may adopt bithulithic pavement as a suitable pavement for the improvement described in Ordinances Nos. 344 and 361. Bithulithic pavement is only a part of the cost of the entire improvement. The principle of competition is retained by the agreement filed by the company, and the cost of the patented article is made the same to every bidder, and the complete cost of the improvement will not only be the cost that is paid to the patentee, but will necessarily include additional cost and expenses, such as labor, other materials, tools, machinery, etc., with reference to which there can be the freest competition, and every bidder may compete as a bidder as to the aggregate cost of the improvement.

6. Under the provisions of paragraph 4 of subd. 6 of sec. 2238, Rev. Codes, as amended, Laws of 1911, p. 266, it is made the duty of the clerk to cause the resolution of intention to be published, and an affidavit of such publication should be filed on or before the time for the filing of the protest. Held, the mere failure to file the affidavit of publication is not jurisdictional and in such case, where the publication was actually made, full notice was in fact given as required by the statute and no property owner was in any way injured.

7. Where the city council of a municipality organized under the laws of this state enacts an annual appropriation bill, and therein provides for public improvements in the sum of $12,500, and a levy is made of 20 mills as authorized by sec. 2238, Rev. Codes, as amended by Laws of 1911, p. 266, for the purpose of raising a general fund for the fiscal year, and such levy, together with the other revenues, such as fines, taxes and licenses provided by law, will produce a sufficient sum to cover all sums which are provided for in the annual appropriation bill, including the $12,500, and such appropriation was intended by the council to be for the purpose of making certain improvements in the paving of cross-sections of streets and other improvements, this court will not hold the ordinance of intention and the ordinance creating the improvement district and the making of assessments, as provided for by sec. 2238 of the Rev. Codes, void.

APPEAL from the District Court of the Eighth Judicial District for the County of Kootenai. Hon. R. N. Dunn, Judge.

An action instituted for the purpose of determining the validity of two ordinances enacted by the city of Coeur d'Alene for public improvements. Reversed.

Judgment reversed. Costs awarded to appellants.

C. H. Potts and James V. Hawkins, for Appellants.

The Idaho statute is materially dissimilar to statutes in other states, in that the legislature has delegated to the city council of this state the exclusive power to, first, pass upon the necessity of a municipal improvement; and, secondly, to determine the character of that improvement. (Williams v. City of Caldwell, 19 Idaho 514, 114 P. 519.)

If the legislature had intended that the city council should in detail apprise the property owners of the character of the improvement, it would have said so. (In re Dugro, 50 N.Y. 513.)

In speaking of pavements we do not mean merely the wearing surface, but the base of the pavement, as well. A pavement base may be composed of concrete having widely different ingredients or of bitumen of vastly different stone. (Ford v. Great Falls (Mont.), 127 P. 1004.)

The city council in this case found that it had jurisdiction. It had a right to pass on its own jurisdiction. (Elliott on Roads and Streets, 2d ed., sec. 339.)

Jurisdiction over this important subject has by the legislature been vested in the city officials, and this court is not authorized to review the acts and proceedings of the city council as no right of appeal has been given.

The only ground upon which the court can interfere in such matters is upon the ground of fraud. (Bunker v. City of Hutchinson, 74 Kan. 651, 87 P. 884.)

"The mayor and council, so far as appears, exercised an honest discretion, and for what they deemed the best interests of the city." (Schefbauer v. Kearney, 57 N.J.L. 588, 31 A. 454; Elliott v. Minneapolis City, 59 Minn. 111, 60 N.W. 1081; Riehl v. City of San Jose, 101 Cal. 442, 35 P. 1013; Kingsley v. City of Brooklyn, 5 Abb. N.C. (N. Y.) 1; 20 Am. & Eng. Ency. of Law, 1165; Parmeter v. Bourne, 8 Wash. 45, 35 P. 586, 757; Baltimore v. Flack, 104 Md. 107, 64 A. 702.)

The notice informed the property owner that such "profiles," whether profiles or plans and specifications, contained the detail information covering the improvement. (Elliott on Roads and Streets, 3d ed., sec. 611; Williams v. City of Caldwell, supra; North Yakima v. Scudder, 41 Wash. 15, 82 P. 1022.)

It being admitted that the bitulithic pavement is patented, we believe a careful review of all the cases of the different states upon this question must inevitably lead to the conclusion that none of the courts now hold, under statutes similar to the statutes of Idaho, that a patented pavement is prohibited. (2 Elliott on Roads and Streets, 3d ed., sec 710; Monaghan v. Indianapolis, 37 Ind.App. 280, 76 N.E. 428; Tousey v. Indianapolis, 175 Ind. 295, 94 N.E. 225; Rose v. Law, 85 A.D. 461, 83 N.Y.S. 599; Warren Bros. v. City of New York, 190 N.Y. 297, 83 N.E. 59; Ex parte City of Paducah (Ky.), 89 S.W. 302; Perine C. & P. Co. v. Quackenbush, 104 Cal. 684, 38 P. 533; Saunders v. Iowa City, 134 Iowa 132, 111 N.W. 529, 9 L. R. A., N. S., 392; Lacoste v. New Orleans, 119 La. 469, 44 So. 267; Bye v. Atlantic City, 73 N.J.L. 402, 64 A. 1056; Dillingham v. Spartanburg, 75 S.C. 549, 117 Am. St. 917, 56 S.E. 381, 9 Ann. Cas. 829, 8 L. R. A., N. S., 412; Hobart v. City of Detroit, 17 Mich. 246, 97 Am. Dec. 185; ...