Baker v. City Council of LaMoure

Morgan, Oh. J. The complaint alleges the following facts: That: on the 28th day of July, 1908, the city of LaMoure, through its council, entered into a contract in writing with the defendant Haggart, for the construction of a system of sewers in that city; that one O. M.. Baker was, by said city council, appointed supervising engineer, and was to superintend the construction of said sewers under said contract;. that he was appointed as such supervising engineer by reason of the-fact that no city engineer had been previously appointed by the mayor as provided by statute; that he duly accepted such appointment, and as such supervising engineer performed all of the duties required of him under said contract and under the statute; that he filed, with the-auditor of the city, a final estimate and report on said sewer system, and said final report was by the said city council referred to a committee for action thereon; that said committee reported to the council, and its report was adopted by said council on April 25, 1909; in this report: the committee recommended that portions of the sewers as constructed, by defendant be reconstructed, inasmuch as they were defectively constructed; that on the 21st day of May,'1909, said committee made' another report to the city council, in which it recommended the acceptance of the sewers as constructed by the defendant Haggart, under the contract, and that he be paid the balance due him in full, less the sum of $150, to be reserved by the city for the purpose of placing the streets-in proper condition; that the city council, by resolution, adopted said report, and ordered that warrants be issued in accordance therewith,, and that the auditor did issue warrants in favor of said Haggart, pursuant to said resolution, for the sum of $3,789.80. The complaint further alleges that said supervising engineer has? never approved the construction of the sewers, but, on the contrary, has specifically disapproved portions of the work done by him under-the contract, and, in consequence of these facts, the contract has never been fully performed or completed, and that warrants were issued for such work in a sum largely in excess of the work actually done by said?, defendant Haggart. [143] The complaint also contains the following allegations: “That the' said Gilbert W. Haggart has not, nor has anyone on his behalf, rebuilt, those portions of said sewer system disapproved by the said supervising; engineer in his report of December 11, 1908; that the said Gilbert. W. Haggart has not, nor has anyone on his behalf, put the streets of the city of LaMoure, North Dakota, along which was constructed the sewer system specified in the contract mentioned in paragraph 3 off this complaint, in the same condition as they were before the construction of said system; that, by reason of the wrongful and unlawful action of the city council of the city of LaMoure in approving and accepting the contract and work done by the defendant Gilbert W. Haggart, after the same had been specifically disapproved by the supervising engineer, appointed by the said city council of the city of LaMoure’ to supervise the construction of said sewer, or certifying of the cost of‘ that portion of the sewer disapproved by said supervising engineer, certifying the cost of putting the streets of the city of LaMoure in condition, to the special assessment commission, by the city auditor, would/ result in assessing an illegal tax against the property of the plaintiff,, and work a special damage to the plaintiff, in that said portion of the-tax levied by said special assessment commission would be an illegal lien on the plaintiff’s aforesaid property.” The prayer of the complaint is that the city council be restrained' and perpetually enjoined from certifying to the special assessment: commission the cost of said sewer system, for the purpose of levying: the special assessment for the cost of said sewers. The defendants demurred to the complaint, on the ground that it. does not state facts sufficient to constitute a cause of action. The demurrer was overruled, and the defendants have appealed from the-order overruling the same. It is first claimed that the plaintiff has shown no such interest in the result of the levying of assessments to pay for the sewer improvements as entitled him to relief in a court of equity. In this regard the complaint alleges that the plaintiff is a “resident property owner and taxpayer of the city of LaMoure, . . . and that he owns property and lots abutting on certain streets in the city of LaMoure . . along which streets has been constructed the sewer hereinafter described, and that said property and lots are subject to assessments by [144] the special assessment commission, for the purpose of paying for the .construction of said sewer above and hereinafter mentioned.” This allegation, in connection with the statements from the com-plaint quoted above, to- the effect that the proposed assessment against the plaintiff’s property would be illegal, is sufficient to show that the plaintiff has such interest in the contract as entitles him to the interposition of a court of equity. If not restrained, plaintiff’s property would be encumbered by a lien in excess of what it would be if the council had not exceeded its authority. Roberts v. Fargo, 10 N. D. 230, 86 N. W. 726; McCain v. DeMoines, 128 Iowa, 331, 103 N. W. 979. It is claimed that the complaint does not show that any assessment will be made against plaintiff’s property to secure the payment of the .said sum of $3,017.30. The complaint shows that warrants have been issued for that 'amount, and there is no provision for the payment of .such warrants except through assessments against the lots abutting on .streets where the sewers are constructed. The plaintiff alleges that he owns such lots. No conclusion can be drawn from these allegations, except that these lots will be burdened with a lien for such excess. The fact that plaintiff’s lots are not specifically described in the complaint is not material. It is also claimed that the complaint fails to show that the work was not done in the good and workmanlike manner called for by the contract. The allegation of the complaint above set forth 'shows that the .sewer has not yet been constructed in accordance with the contract. These defects are specifically pointed out in the report of the engineer. Furthermore the contract-provides that the sewer was to be built “to the satisfaction of the engineer selected.” Under the terms of the contract, and under §§ 2784 and 2800, Rev. Codes 1905, the approval of the engineer is necessary before the final action by the-city council. contract provides that the work shall be done “in good, workmanlike, and substantial manner, to the satisfaction and direction of the engineer to be selected by the said party of the second part, who shall have general supervision of all and each part of the said work to be testified by a certificate under the hand of the said engineer.” Section 2784, supra, provides that “such contract'shall require the work to be done thereunder to be done pursuant to the plans and speci [145] fications therefor on file in the office of the city auditor . . and subject to the approval of the city engineer, who shall personally supervise and inspect such work during its progress.” Section 2800, supra, provides: “Whenever the work for which a special assessment shall be required to be made by such commission shall have been completed, and approved by the city engineer, and the total cost of such work shall have been ascertained as near as practicable, the city auditor shall notify the chairman of such commission of the completion of such work,” etc. From the contract and these statutes, it is plain that approval by the engineer is intended as a prerequisite to final action by the council. The statutes were enacted to protect property holders from having to pay for poor work or materials, and from other abuses in public work liable to escape detection by those not specially informed on such matters. Engineers are supposed to have special training in such matters, hence the importance attached to their approval both' in the statuta and in the contract under consideration. There is no question raised in this case as to the good faith of the engineer. The authorities make an exception as to a certificate by the engineer being necessary, if it is shown that the action of the engineer is arbitrary, fraudulent, or unreasonable. 28 Cyc. Law & Proc. 1049, and cases cited. Reid v. Clay, 134 Cal. 207, 66 Pac. 262; O’Dea v. Mitchell, 144 Cal. 374, 77 Pac. 1020. The complaint and exhibits attached thereto and made a part thereof show wherein the sewers were not constructed in accordance with the contract, which provided that they were to be constructed in a good and workmanlike manner. In his report, the city engineer specifically •disapproves of the work of the contractor, and states that the contract price should be reduced as to 10-inch pipes in the sum of $3,017.30. The complaint also shows other defects, and that the city engineer specifically disapproved the work and recommended a deduction from the contract price in a sum in all amounting to $4,389.80. These allegations refute, so far as the demurrer to the complaint is concerned, any contention that the refusal of the engineer to approve the work was arbitrary and unreasonable. We are now only determining whether the complaint states a cause of action as against demurrer. We are not determining that to refuse to approve of the work under the contract, for [146] the reason that the sewers were not constructed so as to come withim what is known as the light test, was arbitrary. We are not passing upon the question whether the light test is a proper method of determining; that the construction of the sewer was not in a good and workmanlike-manner, because it does not comply with the light test. If the action of the engineer was arbitrary, the council would not be bound thereby; but the complaint and exhibits cannot justly be said to show an. arbitrary refusal to approve of the work, as a matter of law. The fact that the supervising engineer in this case was appointed by the council especially for the work, for the reason that there was no-regular city engineer, has no force to change the binding effect of the* contract that the engineer’s approval was necessary, or as to the application of §§ 2787 and 2800, supra, to such contracts. The statute-provides that when there is no city engineer the council shall employ one. In McGuire v. Rapid City, 6 Dak. 316, 5 L.R.A. 752, 43 N. W. 706, the effect to be given to a certificate of approval of a city engineer under a contract very much the same as the one in question was considered, and the court said: “By its terms, the plaintiff was to perform the work under direction of the city engineer, and to his satisfaction. The city made the engineer its agent to approve and accept the-work. His judgment was the judgment of the city, and the plaintiff' was only required to perform the work in such a manner as to meet with his approval. It is true that the contract does provide that the* work was to be done in a ‘good, workmanlike, and substantial manner,’ but whether it was so done or not was to be determined by the-engineer himself. The plaintiff and defendant contracted that the.- ' work must pass the inspection of the defendant’s engineer; and though a court and jury, or other competent tribunal, might be satisfied that-the work was done in a good, workmanlike, and substantial manner, yet it would not avail the plaintiff under this contract, unless, perhaps, the-engineer should fraudulently or wrongfully withhold his approval.” The complaint states a cause of action, and the demurrer was properly overruled. Order affirmed, Carmody, J., concurring specially, Spalding, J.?, dissenting.