State v. Coleman

• Decision Date: 09 November 1912
• Citation: 127 P. 568,71 Wash. 15
• Parties: STATE ex rel. MURPHY v. COLEMAN, Mayor, et al.
• Court: Washington Supreme Court

127 P. 568

71 Wash. 15

STATE ex rel. MURPHY v. COLEMAN, Mayor, et al.

Supreme Court of Washington, En Banc.

November 9, 1912

Appeal from Superior Court, Lewis County; Sol Smith, Judge.

Mandamus by the State, on the relation of W. J. Murphy, against J. T Coleman, mayor, and others, commissions, constituting the city commission of the city of Chehalis. From a judgment for relator, defendants appeal. Affirmed.

C. A Studebaker, of Chehalis, and Preston & Thorgrimson, of Seattle, for appellants.

Boyle, Warburton & Brockway, of Tacoma, and Forney & Ponder, of Chehalis, for respondent.

CROW J.

Application for a writ of mandamus, brought by W. J. Murphy, relator against the mayor and commissioners of the city of Chehalis, to compel the levy of a special assessment upon property in a sewer district, sufficient to pay relator $53,026.81 claimed to be due him for the construction of a sewer system. A demurrer to the answer was sustained, and judgment was entered awarding the writ. At the hearing and argument on the demurrer, defendants asked permission to amend their answer. Relator objected to any amendment, but the trial judge indicated that he would pass upon the application when he ruled upon the demurrer. The demurrer was then taken under advisement, with permission to the parties to present additional authorities. On February 10, 1912, the trial judge signed a judgment awarding the writ, without passing upon the application to amend. This judgment was entered on February 13, 1912. On February 19, 1912, the defendants moved the court to vacate the judgment and permit the filing of their proposed amended answer. This motion, to support which affidavits were filed by defendants' counsel, was denied. The defendants have appealed from the final judgment, and also from the subsequent order refusing to vacate the same, or to permit the filing of the amended answer.

The cause was decided upon the pleadings, which are too voluminous to be stated in an opinion of reasonable length. The relator's affidavit making application for the writ in substance shows: That on January 11, 1911, he entered into a written contract with the city of Chehalis for the construction of the sewer. That a local improvement sewer district had theretofore been created by ordinance. That the cost of the sewer was to be paid from the proceeds of a special assessment to be levied on benefited property within the district. That at the time the contract was entered into Chehalis was a city of the third class governed by a mayor and common council. That the contract provided that the sewer was to be constructed according to plans and specifications theretofore prepared and adopted; that the work was to be done to the satisfaction of Walter H. Allen, an engineer employed by the city. That the relator, under the supervision of the engineer, constructed and completed the sewer system in full compliance with the plans and specifications and the terms of his contract. That the city council named two of its members as a sewer committee. That the sewer was constructed under the immediate supervision of the engineer, his assistants, and the sewer committee. That, when the engineer and the sewer committee measured the work and made final inspection, they found the work was completed in accordance with the terms of the contract, plans, and specifications, with certain slight exceptions which they notified the relator to complete and correct. That relator fully complied with these demands. That the engineer thereupon made, certified in writing, and filed with the city council, his final certificate in words and figures as follows: 'Chehalis, Wash., Oct. 30, 1911. To the City Council, Chehalis, Wash.--Sirs: W. J. Murphy, contractor for the construction of the sanitary sewers in Local Improvement Sewer District number one, has completed the work according to plans and specifications, and I have accepted the same. Assessment roll attached hereto. Respectfully, W. H. Allen, City Engineer.' That at the same time the engineer made and certified an allowance to relator for extra work, amounting to $1,975.65, and certified to the city council that the total amount due the relator was $53,026.81. That the engineer also prepared and presented to the city council a proposed assessment roll, showing the proper amount to be levied against each piece of property within the assessment district. That the city council took no further action. That shortly thereafter the commission form of government was adopted by the city and that the appellants qualified as mayor and commissioners. That relator demanded that they levy the special assessment, and that they have refused to do so.

The appellants, by answer, admitted the passage of the ordinance, the execution of the contract, and the adoption of the plans and specifications, and denied other allegations of the affidavit. For affirmative defense they, in substance, alleged that relator had neither constructed nor completed the sewer in accordance with the terms of the contract; that the engineer had no authority to give the certificate approving the work, and stating the amount due relator; that the engineer's action in so doing was a legal fraud on the city and the property owners within the district; that it would require a vast amount of work and the expenditure of $30,000 to complete the sewer in accordance with the terms of the contract; that in its present condition the sewer is useless; that it will be of no benefit to the property owners within the district; and that no assessment based upon benefits can be made. The answer with much detail sets forth particular instances in which appellants contended the relator has failed to complete the contract. It, in effect, admits that the work was done under the superintendence of the engineer, who is shown to have been employed by the city. While the answer alleges that the action of the engineer, when he gave the final certificate, was a legal fraud upon the city, it utterly fails to allege that relator was a party to any fraud; that he was guilty of any collusion with the engineer, or that he did not perform the work, as it was performed, under the immediate supervision and control of the engineer; nor does it allege any fact showing, or tending to show, the participation of relator in any fraudulent acts.

Appellants' first contention is that the relator cannot maintain this action in which he demands a writ of mandamus, but that his cause of action, if any, is one for damages arising from a breach of contract. We find no merit in this contention. We have repeatedly held that a proceeding of this character is a civil action, in which the relator as plaintiff can be afforded the relief to which he may be entitled. State ex rel. Brown v. McQuade, 36 Wash. 579, 79 P. 207; State ex rel. Barber, etc., Co. v. Seattle, 42 Wash. 370, 378, 85 P. 11; State ex rel. Gillette v. Clausen, 44 Wash. 437, 443, 87 P. 498; State ex rel. Howe v. Kendall, 44 Wash. 542, 545, 87 P. 821; State ex rel. Barto v. Drainage Commissioners, 46 Wash. 474, 90 P. 660.

Appellants next contend that the trial court erred in refusing to vacate the judgment and grant them permission to file their proposed amended answer.

The granting or refusal of an application to amend is within the sound discretion of the trial judge, and ordinarily his action will not be disturbed unless an abuse of discretion be shown. In this case we are satisfied from the record before us that the trial judge intended to refuse leave to amend the answer at the time he passed upon appellants' demurrer and entered the final judgment, but that by inadvertence he neglected to do so, or to...