Smith v. City of Portland

• Decision Date: 29 January 1894
• Parties: SMITH et al. v. CITY OF PORTLAND et al.
• Court: Oregon Supreme Court

35 P. 665

25 Or. 297

SMITH et al. v. CITY OF PORTLAND et al.

Supreme Court of Oregon

January 29, 1894

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

Proceeding by A.T. Smith and others against the city of Portland and others to review the action of the common council of said city in the matter of assessments for the cost of constructing a sewer. From a judgment for plaintiffs defendants appeal. Affirmed.

J.V. Beach, City Atty., and W.H. Adams, for appellants.

John Catlin, for respondents.

MOORE, J.

This is a special proceeding to review the action of the common council of the city of Portland in the matter of assessments for the cost of constructing a sewer. The return to the writ shows that said council, on April 20, 1892 passed an ordinance providing for the time and manner of constructing Portland Heights sewer, establishing a sewer district, authorizing the committee on sewers and drainage to advertise for, receive, and report bids for its construction to the council, to enter into a contract therefor with the accepted bidder, and appointing assessors to estimate and report the cost to be assessed to the several owners of the property in said district. Whereupon the committee advertised for sealed proposals for the work, to be completed in accordance with the plans and specifications therefor, and in answer thereto five bids were received, of which the bid of $22,597.50, made by the American Bridge & Contract Company was the lowest. The committee made its report, recommending that the contract be awarded to the lowest bidder, which was upon motion, adopted by the council, and said committee, on July 5th, in pursuance thereof, entered into a contract with the American Bridge & Contract Company for the construction of said sewer. The specifications provided for concrete where necessary, but, as it was impossible to tell, in advance of the excavation for the sewer, that any concrete would be required, no estimate thereof was made by the engineer, and no mention was made of it in the accepted bid, but, when the contract was executed, the committee on sewers and drainage inserted the following item, "For all concrete used, per cu. yd., $12.00," and, under this clause, $4,344.20 was assessed upon the property within the sewer district. The assessors appointed to estimate the cost of said sewer made a report of the benefits to be assessed to each tract of land within the district, amounting in the aggregate to $28,310.45, which report was adopted by the council, and on December 21, 1892, an ordinance declaring said assessment, directing the clerk to enter a statement thereof in the docket of city liens, and to publish notice of said assessment, was passed. The sewer was completed according to contract, and city warrants, amounting to $27,167.75, were, by order of the council, drawn upon the fund to be raised by said assessment, and delivered to the contractor, and an additional charge of $1,142.70 was made for the wages of an overseer in superintending the work. That, on February 14, 1893, warrants for the collection of the delinquent sewer assessments were, by resolution of the council, issued, and delivered to the chief of police; and on April 3d the plaintiffs, whose property was liable therefor commenced this proceeding to review the action of the council, in relation to that portion of the assessment in excess of the contractor's bid. The court, at the hearing, made findings upon all the facts in relation to the council's proceedings, in the matter of the construction of said sewer, and, among others, the following: "That the committee on sewers and drainage had no authority to enter in the contract the item, 'For all concrete used, per cu. yd., $12.00,' which amounts to $4,344, and that, in doing so, it exceeded its authority. That there is charged to said property the further sum of $1,142.70, no part of which was included in said bid, nor in said contract, and the common council exceeded its authority in so charging the same to the property benefited by said sewer, and in attempting to collect the same. That the common council exceeded its authority in directing the auditor and clerk of said city to issue warrants for the collection of $28,310.45, or for any greater amount than the sum of $22,579.75. That the assessment upon the several tracts or parcels of land owned by the petitioners should be reduced in proportion that $28,310.45, the erroneous assessment upon the whole property, bears to what the true assessment should be, to wit, $22,579.75." The court rendered a judgment against the defendants for the costs and disbursements, and annulled and set aside all the assessment upon the petitioners' property, in excess of their proportion of the $22,579.75, from which the defendants appeal. At the hearing they offered to prove that the plaintiffs, A.T. Smith and others, appeared before the committee on sewers and drainage, and requested it to let the contract for concrete at the price agreed upon, without asking bids therefor, giving as a reason for their request that the season was so far advanced that further delay would postpone the work, to their damage. The court having sustained an objection to this offer, the defendants took an exception to said ruling, which was noted and allowed, and this is assigned as error.

"The authorities," says Shattuck, J., "fully sustain the position that the writ of review only brings up the...