Clyde v. City of Moscow

AILSHIE, C. J. — This action was brought by a property owner and taxpayer within an improvement district.in the city of Moscow, for the purpose of procuring an injunction against the city authorities restraining them from proceeding with a pavement contract. The district court denied the relief sought, and this appeal has been prosecuted. A great many errors have been assigned, going to the sufficiency and regularity of the ordinances passed by the city providing for the improvement involved in this case. It is contended that the first ordinance looking to this improvement, No. 361, was not a proper or sufficient ordinance declaring the intention of the city to make the contemplated improvement, and that in fact there was no ordinance of intention to improve as provided for and required by sec. 4, chap. 81, of the 1911 Sess. Laws (1911 Sess. Laws, p. 268). That section of the statute, among other things, provides as follows: “The city council or trustees shall, before or during the grading, paving, or other improvement of any street or alley, the cost of which is to be levied and assessed upon the property benefited, first pass at a regular or special meeting, a resolution or ordinance declaring its intention to make such improvement, and stating in such resolution or ordinance the name of the street or alley to be improved, the points between which said improvement is to be made, the general character of the proposed improvement, . . . .” The ordinance here in question, No. 361, after setting out the title and describing the streets to be paved, has this further recital introductory to the enacting clause: “Whereas, the public interest and convenience require and demand that such improvements be made upon the hereinbefore described streets, between the points thereon herein set forth, in the manner hereinafter ordered, now, therefore, be it ordained by the mayor and city council, ’ ’ etc. The ordinance further provides in sec. 5 thereof that “any person or persons, company — 598 — or corporation, being the owner of any of the lots or lands or parcels of lots or lands, abutting, fronting, contiguous or tributary to the streets or portions of the streets in section 1, of this ordinance, .... which- would be or is affected by such improvement, .... who desire to file protest or protests against said proposed improvements, as in this ordinance mentioned and set forth, shall on or before the 15th day of June, A. D. 1912, file such protest or protests in the office of the city clerk of the city of Moscow, Idaho, to be thereafter taken up and heard by the mayor and city council.” While this ordinance in part declares unqualifiedly that the city will make the improvements, it also in other portions thereof gives notice to the property owner that an opportunity for a hearing will be accorded and that protests are invited. The ordinance was in fact passed, and reads as if it were intended as a permanent ordinance, but it conforms to the requirements of the statute, except as to the formal notice and directions which such an ordinance might contain. We are satisfied, however, that it substantially complied with the statute, and gave the property owners all the notice that any ordinance could give them under the statute, and that their rights were in every respect protected under this ordinance. The next objection made is that “the initial ordinance No. 361, in describing the improvement of Main street, states that the street shall be paved the full width thereof, which the plans show as 56 feet, but the ordinance ordering the work and the contract show that on the south end of the street the pavement has been cut down to a width of 18 feet. This the council has no power to do. They cannot give the property owner notice of one kind of improvement and then make another kind.” In support of this contention counsel cite a number of authorities (28 Cyc. 1009; Stockton v. Whitmore, 50 Cal. 554; Smith v. Chicago, 214 Ill. 155, 73 N. E. 346; Trenton v. Collier, 68 Mo. App. 483; Page & Jones, Taxation by Assessment, see. 510; Pells v. People, 158 Ill. 580, 42 N. E. 784; Kutchin v. Engelbret, 129 Cal. 635, 62 Pac. 214; City of Paxton v. Bogardus, 201 Ill. 628, 66 N. E. 853; Auditor General v. Stoddard, 147 Mich. 329, 110 N. W. 944), many of — 599 — which seem to be in point on the proposition suggested. It is argued by counsel for respondent that the law does not require that the initiatory ordinance give the width of the street, but merely the “general character of the proposed improvement, ’ ’ and that the statement in the initiatory ordinance that the street was to be paved the width of 56 feet was surplusage and not binding or conclusive on the mayor and council, and that they might pass their final ordinance and let their contract for a less width. However this may be, it does not appear to us that the objection is well taken in the present ease, for the reason that the change in the width of this pavement only affects one street for a distance of about 400 feet and within that distance there are no street crossings. It is clear to us that this change could make no difference with anyone other than a property owner abutting on the particular portion of the street in which the reduction in width of pavement is made. This change would make no difference with any other property owner either in the amount of his assessment or the benefits which he might receive from the improvement or the use of the street. On the other hand, we can readily understand why it might affect a property owner whose property abuts on the particular portion of the street in which the change is made. A man plight be willing to have the street paved in front of his property, provided the pavement would come up to the curb or sidewalk so as to give him free and easy ingress and egress. On the other hand, he might seriously object to having a strip of 18 feet paved down the center of the street and leave him a mudhole between his property and the pavement, and consequently make it even more difficult for him to get in and out than it would have been without any pavement at all. It does not appear in the present case, however, that the party complaining owns property' abutting on this particular portion of the street or which would be affected by this particular change, and the objection is not based on that ground. The contention that the title to Ordinance No. 361 is not sufficient is not well taken. The title states the general purpose of the ordinance and meets the substantial requirements — 600 — of the statute. (Sec. 2276, Rev. Codes; Village of St. Anthony v. Brandon, 10 Ida. 205, 77 Pac. 322; State v. Calloway, 11 Ida. 719, 114 Am. St. 285, 84 Pac. 27, 4 L. R. A., N. S., 1109.) Complaint is made that the contract was not entered into by the city council, but, on the contrary, was entered into by the mayor and city clerk. The statute, sec. 16, chap. 81 of the 1911 Sess. Laws, provides that, “All contracts which are made by the city or village for any improvements authorized by this section, or any subdivision thereof, shall be made by the council in the name of the city or village.” Now, in this case the council by its Ordinance No. 365 provided that a contract should be entered into, and in effect made the contract on the part of the city by and through this ordinance. It merely authorized the formal signing and executing the same by the mayor and city clerk. These acts, however, were merely the acts of the council, evidenced by their duly constituted representatives, the mayor and the city clerk. The description of the work to be done and the improvement to be made as contained in Ordinances Nos. 361 and 365 was sufficient to apprise property owners of the ‘ ‘ general character” of the work, and was a substantial compliance with the statute. It has been argued, however, that since the ordinance did not enumerate “Dolarway” pavement as one of the possible classes of pavement that might be used or as a “standard pavement,” that to contract for that kind or class was therefore a violation of the ordinance. The ordinance provided, among other things (sec. 1, Ordinance 361), that the pavement should be done with “brick, asphalt, sheet asphalt, bithulithic, hassam, asphaltic concrete, asphalt macadam, or other standard pavement.” The city introduced two experts. (Ash-ton and Wycoff), who testified that “Dolarway” is a “standard pavement. ” This was a question of fact, and the evidence seems to sustain the contention that “Dolarway” is a standard pavement and that it falls within the provisions of sec. 1 of the ordinance. Objection has also been urged against that provision of Ordinance No. 365 which authorizes the mayor, by and with the consent of the council, to “appoint a committee of three — 601 — citizens and taxpayers of said city to aid and assist the mayor and city council and be advisory to them in the construction of the improvements in this ordinance made and provided for.” We fail to see wherein this provision of the ordinance and action of the council was in any way fatal to the ordinance or to the contract for payment. It appears that the contract was actually made by the mayor and council, and that the business is to be conducted and transacted on the part of the city by the mayor and council and such officers as may be authorized by law and the city council to transact such business. The selection of this committee in an advisory capacity only could in no way invalidate an action which was otherwise legal. The objection that the contract was awarded prior to the completion and confirmation of the assessment-roll is not well taken. It cannot become a consummated binding contract until such time as all the preliminary provisions of the ordinance are complied with and the necessary statutory conditions precedent to the consummation of the contract are complied with. As a matter of fact, our attention has not been called to any place in the record showing that the contract was really let before the completion of the assessment-roll. Complaint is made that Ordinance No. 361 contained no estimate as to the necessary cost for curbing. ■ That ordinance provides that the estimated cost of paving a street together with curbs and curbing will be the sum of $2.10 per square' yard throughout. By this it was evidently intended to include curbing in measuring width of paving, and that the number of square yards of curbing and paving should be computed together, and that the estimated cost should not exceed $2.10 per square yard. This ordinance of intention to improve did not commit the city to pay that much if it could finally secure a better and more favorable price. Considerable argument was indulged in over the provision of subd. 6 of sec. 2238 of the Rev. Codes, which deals with the subject of paving street intersections. That provision is as follows: “The expense of all improvements in the space — 602 — formed by the junction of two or more streets or wherein one main street terminates in or crosses another main street, and also all street crossings or cross-walks, shall be paid by such city or village. ’ ’ The same subdivision provides that the cost of all work and improvements for street pavements shall be assessed upon the lots and land fronting thereon. In the ordinances under discussion here, the council provided for the payment by the city at large for street intersections, but makes no specific provision for that part of the street immediately opposite and abutting on an alley. It is argued by appellant that the ordinance is defective in not providing for the paving of the intersection of alleys with streets. Counsel for the respondent contends that subd. 6 of see. 2238 does not contemplate the payment for alley intersections by the city, but that such intersections are paid for by the improvement district the same as any other part of the street pavement. An alley is clearly a convenience and benefit to the abutting lots only, and it is not a general convenience of necessity to the city at large. It follows, therefore, that the pavement of that part of the street immediately in front of an alley or abutting on an alley should be paid for by the property owners. If, therefore, the pavement of this part of the street is paid for out of the general fund of the improvement district, the expense thereof will in the last analysis fall upon the property receiving the benefit. It was not necessary and, indeed, would not have been within the contemplation of the statute, to provide by ordinance for the city paying for paving the spaces included in intersections of streets with alleys. We find no reason for reversal of the judgment of the trial court in this case. The judgment should be affirmed, and it is so ordered. Costs in favor of respondent. Sullivan and Stewart, JJ., concur.