Trippeer v. Couch

• Decision Date: 18 December 1923
• Citation: 220 P. 1012,110 Or. 446
• Parties: TRIPPEER ET AL. v. COUCH, COUNTY JUDGE, ET AL. [*]
• Court: Oregon Supreme Court

220 P. 1012

110 Or. 446

TRIPPEER ET AL. v. COUCH, COUNTY JUDGE, ET AL. ^[*]

Supreme Court of Oregon

December 18, 1923

In Banc.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Petition for mandamus by Joseph Trippeer and others against U. G Couch, County Judge, and others. From judgment dismissing alternative writ, plaintiffs appeal. Affirmed.

The petitioners herein are electors and taxpayers of Union county, Or. The defendants U. G. Couch, County Judge, J. F Hutchinson, and John Wells are county commissioners of Union county, Or., and, while acting together in their official capacity, constitute the county court of Union county for the purpose of transacting county business.

Upon a petition filed by the plaintiffs in the circuit court for Union county, state of Oregon, an alternative writ of mandamus was issued, commanding that the defendants--

"immediately contract for, let for advertising for bids, or proceed to construct a permanent road or permanently improve an existing road between Island City and the city of Cove in said county grading or completing the grading thereof and paving the same with concrete, asphalt, bitulithic, or some similar hard surface pavement, and that you expend thereon the full sum of $276,000 on hand in the funds obtained by the sale of * * * road bonds, * * * or that you show cause before this court at the circuit court room in La Grande, Union county, Or., on the 26th day of March, 1923, at 10:00 o'clock in the forenoon, why you have not done so."

It appears from the writ of mandamus that, in pursuance of the provisions of chapter 103, Laws of 1913, entitled:

"An act to authorize the county courts of the state of Oregon to issue and sell bonds or county warrants of the county for the purpose of building and maintaining permanent highways within the respective counties; * * * to hold special elections for the purpose of submitting to the voters of the county the question of the issuance of bonds and warrants: and generally to provide a complete manner of procedure for the issuance of county bonds for the purpose of the building, construction and maintenance of permanent highways,"

--a petition was filed praying for an election for the issuance of county bonds for the construction of permanent highways.

It is averred that the commissioners' court concurred in the proposition contained in the petition, and entered its order in accordance therewith. The petition proposed an election by the legal voters of Union county for the purpose of determining the question of bonding that county in the sum of $1,498.000 for the construction of permanent roads in accordance therewith. The court ordered an election, and submitted the proposition of bonding the county for the purpose of constructing permanent roads and--

"particularly described, designated and located each different road and highway so proposed to be constructed and improved, the beginning and ending of each, and the amount and proportion of said bond issue that should be used upon each in such permanent construction and improvement; and, among other roads so designated and located, the said commissioners' court in said order said: 'That certain road beginning at the city of Island City and running thence in an easterly direction and terminating in the city of Cove, the sum of $276,000.' "

The petition then alleges the giving of notice of election, as required by the statute under consideration, which notice reads as follows:

"Notice is hereby given that on Saturday, the 11th day of October 1919, a special election will be held in Union county to determine whether the county court shall issue serial bonds of said county to provide for permanent road construction to the amount of $1,498,000, to mature as follows (naming the series from No. 1 to No. 16), and the amount, and when each series would become due--from January 15, 1925, to January 15, 1940."

The notices further described each road proposed to be constructed, and, among other things, set forth that--

"$276,000 shall be expended on that certain road beginning at the city of Island City and running thence in an easterly direction and terminating in the city of Cove."

It is further averred that the electors, when voting upon the issuance of bonds, did so with the intent and belief that the several amounts designated in the order of the county court and in the notices of election posted in pursuance of law, would be used in the construction of permanent improvements of the roads so designated. It is averred that the petitioners and the electorate of Union county well understood that the roads so designated, and particularly the road from Island City to Cove involved in this litigation, were to be constructed by placing upon the surface of such roads a concrete, asphalt, bitulithic, or similar hard surface pavement, permanent in character. It is further averred that the amount determined for the construction of the road in question was upon the basis of what it would cost to grade and pave that road with hard surface of concrete, asphalt, or similar hard surface material, and that amount was set forth in the order and the notices of election. It is further averred:

"That the said sum of $276,000, authorized and set aside by the electorate for the construction of said road * * * is amply sufficient to pave such road with a permanent concrete, asphalt, bitulithic, or similar hard surface pavement, including both grading and pavement. * * * That the defendants have failed, neglected, and refused * * * to advertise for bids, contract or let, or build or construct. themselves, the said permanent road and highway so authorized by the electorate of said county."

The petition shows that the county court has funds available in the full sum of $276,000.

The defendants, answering the alternative writ of mandamus, after denying much of the matter alleged therein, as a further and separate answer alleged:

"That the county court of Union county has been delayed in the construction of said permanent road from Island City to the Cove for quite a long time, on account of litigations in other counties in this state, both in the Circuit and Supreme Courts, involving the validity of bond issues in said counties, under the same law and under like elections and circumstances as the said bond issue for the construction of permanent roads in Union county, which litigation, together with the bond market in general, made it impossible for the county court of Union county to sell said bonds at par so as to have money available for the construction of said permanent road between Island City and the Cove."

They then plead in their defense their knowledge of road construction, acquired from the experience of the state highway department. The answer avers the construction of more than 600 miles of hard surface paved public roads by the state, "partly 5-inch concrete and partly 5-inch bitulithic, or black top, at an average cost of $28,100, per mile"; and the defendants say by their answer that under the traffic over such roads they have become broken and greatly deteriorated, and, in many instances, their reconstruction has been necessary; that, with the state's experience in view, "the defendants had therefore concluded that with only the sum of $276,000 available for the construction of this permanent road between Island City and the Cove, a distance of some 15 miles, that it will be impossible to construct either a concrete, asphaltum, or bitulithic hard surfaced road over this route, of even 5 inches in thickness and 16 feet wide," for the reason that a road so constructed would not bear the traffic over it.

The defendants then aver that the bond money voted for the Island City and Cove road is not to be used, nor will the court permit it to be used, for any other purpose than for the building of a permanent highway between Island City and the Cove. They then allege that with the intention of constructing a permanent highway between these two points, the defendants, as the county court of Union county, have caused that road to be surveyed and laid out, and have acquired rights of way therefor, and that the road is partly graded and ready to receive surfacing. Likewise, in pursuance of their authority and duty, they have had prepared by a competent highway engineer plans and specifications for two types of permanent road to be constructed between Island City and the Cove, which are now on file with the county court. One of the proposed roads is a--

"macadam finished road, 18 feet wide, constructed with a 6-inch base, of 3-inch crushed rock, on top of this a 4-inch course of 1-inch crushed rock, finished with a 4-inch course of finely crushed rock, all properly laid and spread and rolled to an even surface, with proper filler and binder mixture; the other composed of a 9-foot wide concrete track, 7 inches thick, with a 7-foot shoulder of crushed rock macadam, properly laid, spread, and rolled with proper filler and binder. That the defendants, acting as the county court of Union county, Or., have regularly advertised for bids for the construction between Island City and the Cove of each type of said road in accordance with said plans and specifications therefor on file with this court, said bids to be opened March 30, 1923, and the contract therefor to be let to the lowest responsible bidder, with the right to reject any and all bids."

It is further averred that, if a fair bid is received for the construction of the road, it is the intention of the court to proceed with the construction work with due diligence.

"As to what type of road will be finally selected and constructed, whether a hard surfaced concrete road or a crushed rock macadam road, will be...