Naylor v. McColloch

• Citation: 103 P. 68,54 Or. 305
• Parties: NAYLOR et al. v. McCOLLOCH, Mayor.
• Decision Date: 20 July 1909
• Court: Supreme Court of Oregon

103 P. 68

54 Or. 305

NAYLOR et al. v. McCOLLOCH, Mayor.

Supreme Court of Oregon

July 20, 1909

Appeal from Circuit Court, Baker County; Wm. Smith, Judge.

Action by A.L. Naylor and another against C.H. McColloch, as Mayor of the City of Sumpter. From a judgment for defendant plaintiffs appeal. Affirmed.

J.N. Hart, for appellants.

C.H McColloch and Clyde McColloch, for respondent.

McBRIDE J.

This cause comes to this court on appeal from a judgment of the circuit court of Baker county refusing to compel defendant as mayor of the city of Sumpter, to sign a warrant for the sum of $600, the payment of which was directed by vote of the city council. The evidence tends to show that on June 21 1904, plaintiffs entered into a written contract with the city of Sumpter to construct a sewerage system for the city, according to certain plans and specifications, which are not on the record, but which from the testimony appear to be sufficiently comprehensive to ultimately accommodate the entire or a great portion of the city. Plaintiffs were to be paid $15,000 on the whole contract, payments to be made monthly, as the work progressed and was measured, the city to retain 25 per cent. until final completion of the entire system. Plaintiffs were to begin work on or before July 7, 1904. It was agreed that the city might pay for the work in legally issued city bonds, or in cash, out of the general fund, as it might elect. The contract also contained a clause couched in the following language: "The city of Sumpter to pay for any readvertising, etc., required to satisfy the attorney of said second parties, that said bonds are legally issued." Plaintiffs also agreed to deposit a certified check for $1,000, to be forfeited should they fail to perform their contract. By a course of negotiations, not necessary to detail in this opinion, the amount was finally reduced to $600, and on July 19, 1904, plaintiffs not having begun work as agreed upon, the council declared the deposit forfeited, and directed the recorder to cash the check and turn the money into the general fund of the city, which he did. It is a fair deduction from this statement that the plaintiffs were in default, and that the forfeiture was proper, unless the city of Sumpter had defaulted in some particular as to its part of the contract, and plaintiff contends that the city was in default, in that it had made no legal provision for payment for the work in city bonds, or otherwise, and had failed to satisfy their attorney that the bonds, which it proposed to issue, were legal or valid bonds. The fact seems to be that plaintiffs' attorneys had advised them that the proposed bonds were invalid and worthless, and that under the charter of the city it could not pay for sewerage improvements out of the general fund, or out of the sale of bonds, or in any other way than by assessments on abutting property.

We do not agree with plaintiffs' contention that the clause in the contract, requiring the city to pay certain expenses required to satisfy the attorney of the legality of the bond issue, absolved plaintiffs from the results of a forfeiture. The contract of plaintiffs is to accept legally issued bonds--not accept bonds which his attorney should advise him were of such a character. Such a construction would furnish a contractor a very easy method of evading a contract, as it would not be difficult to find an attorney who might advise a client in an emergency that any sort of a bond issue was illegal. Nor do we think that a fair construction of this clause leaves to the attorney the decision of the question as to the primary right of the city to issue bonds for the purpose proposed, but in any event was only intended to give him a sort of a general supervision of the manner in which the issue should be made. The city was to "lay all cost of advertising, etc., required to satisfy the attorney of the legality of the bond issue." Now if the character "etc." has any meaning in a contract, which is doubtful, it can only mean "and others"; that is, other things of like character to the thing specified, namely, advertising, and such other details of the issue as would make bonds, which both parties must have assumed that the city had a right organically to issue, good and valid. If the city had no right under its charter to issue bonds for the improvement, under any circumstances, then no amount of advertising and no moneys worth of "etc." could remedy this defect, and we will not assume that the parties were intending to contract for an absurdity. There are abundant authorities which hold that the character "etc.," used as it is in this contract, is meaningless. Harrison v. McCormick, 89 Cal. 327, 26 P. 830, 23 Am.St.Rep. 469; Myers v. Dunn, 49 Conn. 71; Whitmore v. Bowman, 4 G. Greene (Iowa) 148; State v. Wallichs, 12 Neb. 407, 11 N.W. 860.

In this case, taking into consideration the context, we are disposed to hold that the particular phrase under consideration should be interpreted to mean, "advertising and other things of like character." Now the city of Sumpter was never called upon to do any specific thing to make its bonds valid, or to satisfy the attorney that they were valid. It seems to have been assumed by him that it was impossible that validity could be imparted to them by any act which the city could perform. Hence, as they were not called upon or required to do any specific thing, they were not in default, unless the bond issue was, in fact, void, and to that question we will now devote our attention. At the outset it may be stated, as an elementary proposition, that municipal corporations have no powers except such as are granted in express words by their charters, or such as are necessarily implied from those so granted, or those essential to the declared objects and purposes of the corporation. 1 Dillon, Munic. Corp. § 89; Tiedeman, Munic.Corp. § 110; 1 Beach on Public Corp.§ 538; MacDonald v. Lane, 49 Or. 530, 90 P. 181. With the foregoing definitions and limitations of municipal power in view, we will now examine the provisions of the city charter of Sumpter, in order to determine whether, among the powers granted or implied in its charter, or necessarily essential to the declared objects of its incorporation, there exists the power to construct a sewer system for the city, and to pay for it out of the general fund, or by bonding the city. Section 31 of the charter (Sp.Laws 1901, p. 101) authorizes the levy of a special tax of not to exceed 10 mills for any specific object within the authority of the corporation, in addition to a general tax of a like amount for general municipal purposes. Subdivision 5 of the same section authorizes the city to issue bonds "for any specific purpose," and further provides as follows: "Whenever the city of Sumpter shall contemplate the issuance of bonds for any improvement under this act, the council shall, by ordinance, direct the manner in which the estimate of the cost of such improvements shall be ascertained." Following this are provisions for making and filing the estimate, submitting the question to a vote of the taxpayers, and other matters not necessary to enumerate. In subdivision 17 of the same section is found authority, among other things, for the construction, cleaning, and repairing of streets, crosswalks, alleys, gutters, and sewers, and in subdivision 47 there is granted general authority "to exercise all such power as may be given to the council by this act, and such additional power and authority as may be necessary and proper to carry into effect the provisions of this act, and to pass all ordinances necessary therefor." From these provisions it will be seen that the power to construct sewers is specifically granted, and it will not be questioned that constructing a sewer is a "specific city purpose," so, if we proceeded no further, it would follow, as a natural consequence, that the city has authority to build a sewer system and pay for it with bonds, if the taxpayers sanction such action by their votes. But there are other provisions of the charter which it is contended are of controlling force, in reference to the constructions of sewers, and which, by prescribing a method of improvement by assessment on abutting property, exclude by implication any other method.

Section 92 of the charter provides "that the council shall have power to *** improve a street, or any part thereof *** and to lay all necessary sewers or drains. The power and authority to improve a street includes the power and...