Portland Lumbering & Mfg. Co. v. City of East Portland

• Decision Date: 01 July 1889
• Citation: 18 Or. 21,22 P. 536
• Court: Oregon Supreme Court
• Parties: PORTLAND LUMBERING & MANUF'G CO. v. CITY OF EAST PORTLAND.

22 P. 536

18 Or. 21

PORTLAND LUMBERING & MANUF'G CO. v. CITY OF EAST PORTLAND.

Supreme Court of Oregon

July 1, 1889^[1]

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

(Syllabus by the Court.)

Be section 1, art. 6, of the charter of the city of East Portland, the common council of said city has full power among other things, to improve the sidewalks, pavements streets, and all parts of streets within the limits of the city, making full of partial improvements thereof, to determine and provide for everything necessary or convenient to the exercise of the authority therein granted.

The power to contract inheres in every corporation, and is co-extensive with its corporate powers.

The plea of ultra vires should not, as a general rule prevail, whether interposed for or against a corporation, when it would not advance justice, but, on the contrary, would accomplish a legal wrong.

The city charter of the city of E. P. empowered its common council to improve the streets within the limits of the city; prescribed a particular mode to be pursued in the exercise of the power conferred; directed that the cost of making the improvements be assessed upon the lots and parts of lots abutting upon the street improved; and authorized the work to be let by contract. Held, that the mode to be prescribed for the exercise of the power constituted the measure of the power; that the common council had no authority to let a contract for doing the work, and pay the price therefor out of the general funds of the city; that an attempt to let a contract for doing the work without complying with the requirements of the charter authorizing such contract to be let was a nullity; and that no liability against the city attached on account of the work done in the improvement of the street without such compliance, in the absence of any other provision in the charter rendering it primarily liable therefor. Held, that the city would not become liable upon an implied contract for work done in the improvement of a street, where it had no power to enter into an express contract for that purpose.

THAYER, C.J., dissenting.

J.C. Moreland, for appellant.

J.V. Beach, City Atty., and K. & E.B. Williams, for respondent.

STRAHAN J.

This is an action to recover against the defendant for the agreed price and value of certain materials furnished by the plaintiff for the defendant, and used in the improvement of one of its streets by the direction of its common council. The third amended complaint states the facts upon which the plaintiff relies, in substance, as follows:

That the plaintiff is a private corporation, and the defendant a public municipal corporation. That on the 8th day of September, 1883, the common council of the city of East Portland duly passed a resolution to improve L street, in said city, from Water street to Twelfth street, in said city, in pursuance of which the following notice was published for the full time and in the manner required by the city charter:

"IMPROVEMENT OF L STREET.

"Notice is hereby given that the common council of the city of East Portland propose to improve L street from the west line of Water street to the center line of Twelfth street as follows: By building an elevated roadway and sidewalk of full width from Water street eastward to the bank of earth elevated between Third and Fourth streets; and from such point eastward to Fifth street, by laying, where the same may be required, a plank roadway of full width, with sidewalk; and, from Fifth street eastward to Asylum slough, by laying a gravel roadway, full width, with wooden gutters and cross-walks where required; by building an elevated roadway and sidewalk of full width across Asylum slough; and, from Asylum slough to Twelfth street, by laying a gravel roadway, full width, wooden gutters, sidewalks, and cross-walks. All of said improvements to be on the established grade, and cost of same to be assessed to adjacent property. By order of the common council.

"J.T. STEWART, Auditor and Clerk."

That no other notice was given for such improvement, and said resolution was substantially the same as the said notice. That afterwards, on the 15th day of October, 1885, the said common council passed an ordinance (No. 325) entitled "An ordinance to provide the time and manner of improving L street," which ordinance is as follows:

"The city of East Portland does ordain as follows: Whereas, the common council or board of trustees of the city of East Portland has, at different times, made partial improvements on L street, in the city of East Portland; and whereas, the common council now proposes to make a full improvement of said street from the west line of Water street to the center line of Twelfth street: Therefore the city of East Portland does ordain as follows: Section 1. The proposed full improvement of L street from the west line of Water street to the center line of Twelfth street, as hereafter provided, shall be completed on or before the first day of February, 1884, due notice thereof having been given by publication, as will more fully appear by the proof thereof duly presented and filed in the office of the auditor and clerk. Sec. 2. The improvement of said street shall be made as follows. By building an elevated roadway and sidewalks, full width of streets, in accordance with the plans and specifications made by the city surveyor, and filed with the recorder of said city, and adopted by the common council, October 15, 1883, from the west line of Water street eastward to the land or earth elevation between Third and Fourth streets, and from such point eastward to Fifth street, by laying a plank roadway full width, with plank gutters and sidewalks, and from Fifth street to Asylum slough by making a gravel roadway of full width, with plank gutters, side and cross walks, and by building an elevated roadway and sidewalks of full width of said street, in accordance with the plans and specifications made by the city surveyor, and filed with the recorder and auditor, and adopted by the common council, October 15, 1883, and from the Asylum slough eastward to the center line of Twelfth street by making a graveled roadway of full width, with plank gutters and side and cross walks. Sec. 3. All of said improvements to be upon the established grade, and made in accordance with ordinance No. 397 of the city of East Portland, and entitled 'An ordinance relating to the improvements of streets.' Sec. 4. All of said improvements shall be made at the expense of the adjacent property and shall be completed to the satisfaction of the committee on streets and public property, the city surveyor, and street commissioners. Sec. 5. The contractor shall take control of the work during its progress, and he shall be responsible for any accident occasioned by carelessness or neglect."

That said ordinance was duly approved by the mayor of said city and afterwards, on the 10th day of November, 1883, the city, acting by and through its committee on streets and public property, by virtue of ordinance No. 397, entitled "An ordinance relating to the improvement of streets, and letting contracts therefor," approved August 9, 1883, entered into a contract with C.L. Spore to improve said L street abutting upon blocks No. 140 and 162, among others, a copy of which contract is hereto attached, and marked "A," and made a part hereof, and at the same time made a contract similar in terms, except the prices were different, with Keenan & Hamilton, for the improvement of L street abutting on blocks 83 and 100. That said Spore and Keenan & Hamilton duly furnished bonds for the faithful completion of said work. That thereafter, and within the time required by said ordinance, said Spore and Keenan & Hamilton duly completed the work required by said contract upon said street opposite the said blocks 83, 100, 140, and 162, and that afterwards the said city and the said Spore and the said Keenan & Hamilton met together, and had a settlement for and concerning the work done under said contracts opposite the said blocks Nos. 83, 100, 140, and 162, and there was found to be due to the said Spore the sum of $1,944.80, and to the said Keenan & Hamilton the sum of $442.70, and that thereupon the said city issued its warrants, as follows: "79.86. East Portland, Or., March 5, 1884. To the Treasurer of the City of East Portland: Pay to C.L. Spore or bearer seventy nine 86-100 dollars out of the special fund for the improvement of L street, assessed upon lot 3, block 162, for the improvement of said street. I.N. SAUNDERS, Mayor. Attest: J.T. STEWART, Recorder." Then follows a large number of other warrants in like form and in varying amounts, each one payable out of the fund for the improvement of L street assessed upon some lot or lots, either in block 83, 100, 140, or 162, and amounting in the aggregate to the sum of $2,387.50. That each of said warrants was duly presented to the treasurer of East Portland, and payment thereof refused for want of funds to pay the same. That each of said contracts, as well as each of said warrants issued, and all claims thereunder, was duly assigned to the plaintiff, and that plaintiff is now the owner and holder thereof. That at various times since said warrants were duly presented for payment, and payment thereof refused by the defendant, and that the defendant was also requested to provide a fund for the payment of said warrants, which it refused to do. That the city has failed, neglected, and refused to cause the said several sums to be assessed to the said several lots and blocks named in said warrants to be collected, except that the owner of block No. 140 paid into court for the benefit of said city the sum of $100, and the owners of block 162 paid...