Shannon v. Portland

Mr. Justice Wolverton, after stating the facts, delivered the opinion of the court. Two questions are urged here, which, it is argued, are indisputably fatal to the validity of the alleged assessments. These are.(i) that no sufficient notice was ever given to the plaintiffs, nor were they afforded an opportunity of being heard upon the question of the proportion of the cost to- be assessed against each lot or parcel of land involved in. the suit, and therefore they were denied their day in court; and (2) the assessments against the abutting lots were not made upon the principle or basis of peculiar benefits accruing by reason of the improvement; and for both of these reasons it is claimed that plaintiffs are about to be deprived or de1vested of their property without due process of law, contrary to the inhibition of the federal constitution. But plaintiffs are met at the threshold with the objection that these questions are not presented by the record, and therefore are not in issue. A question of like nature was presented in the case of Allen v. City of Portland, 35 Or. 420 (58 Pac. 509), and the decision therein is in support of the objection. A decided effort is now made to show that the doctrine of that case is fallacious and unsound, but that, should it be adhered to., then the case at bar is susceptible of distinguishment, in that the questions designed to be presented here are in the record in proper manner for adjudication, and — 389 — ought to. be considered. A criticism is suggestetd that the Allen Case seems to have gone off upon the proposition that there was no question involved through which the federal supreme court would take jurisdiction to determine the controversy by writ of error, and it is insisted that it comprised as well the proposition whether the scope of the pleadings was sufficiently comprehensive to admit of inquiry touching the federal question. The Allen Case was presented upon the express proposition that there was a question in the case such as would give the federal supreme court jurisdiction by writ of error from this court, which accounts for the manner in which it was treated and disposed of. While the other phase of the question was in the record, it was not specifically discussed, except by such allusions as were made to it in the petition for rehearing. The whole question was involved there as here, and, while the reasons given for not considering it may not have covered the whole ground, they were, as we are yet impressed, amply sufficient to support the conclusion reached; hence we shall not now attempt to review that case, as respects the reasons there assigned. The suggestion is made that the question touching tlie want of proper notice, and an opportunity to- be heard as to the proportion of the cost to be assessed against each lot, if properly in the record, leads irresistibly to the consideration of the second, — that the assessment was not made upon the basis of benefits received by reason of the improvement, — because, if notice were given, it would be unavailing, the council having no power under the charter to give relief. They could make but one kind of apportionment, namely, the one prescribed by sections 114 and 115. In other words, it is urged that the legislature has fixed the apportionment in advance, not upon the basis of peculiar benefits, but arbitrarily and absolutely, — that certain lots or property shall bear certain burdens, — and left the council without discretion in the premises. The two* questions, for the reasons as — 390 — signed, are naturally cognate, or one of a piece; and, therefore, if one is to be considered, the other ought to be, also. Pleadings are liberally construed when the questions are upon the admissibility of evidence, or at or subsequent to trial, to the end and purpose that matters may be settled finally while in court. Let us inquire, then, whether, under the rule, the federal questions suggested are involved here, without reference to the specific inquiry whether or not the federal supreme court will take cognizance of the cause. In the reply brief is given a perspicuous and fair analysis of the facts alleged in the complaint. They include, as counsel say, “the location and ownership of plaintiffs’ property on East Water Street; resolution declaring the street dangerous, and authorizing notice of intention to improve; publication of notice; passage of ordinance providing for time and manner of improvement; taking of bids and making of contract; notices of completion, and objections to acceptance; passage of ordinance declaring probable cost, and directing entry in lien docket; notice that assessments were due and payable, and would be delinquent; nonpayment of assessments; passage of ordinance authorizing an issue of warrants for collection of assessments; notices given by chief of police of sale underwarrants; threats and intention of chief of police to sell; injury which would result from sale; bringing of suit on behalf of plaintiffs and all other owners affected; absence of a plain, speedy, and adequate remedy at law.” In addition to these, it is further alleged, as stated, “that in making said improvement or repair the said common council attempted to proceed under section 122 of the charter of the said City of Portland, the same being an act of the Legislative Assembly of the State of Oregon entitled “An act tO' incorporate the City of Portland, and to provide a charter therefor, and to repeal an act entitled “An act to incorporate the City of Portland,” filed in the office of the Secretary 'of State, February 19, 1891,” filed in the — 391 — office of the Secretary of State February 23, 1893; that said section 122 of said charter, in so far as it attempts to authorize any improvement or repair of any street to be made without any petition therefor, or without any remonstrance being heard thereto, and also by reason of not providing for any sufficient notice thereof, is unconstitutional and void; * * * that said pretended assessments against said property of plaintiffs, although apparently regular, and all proceedings in relation thereto-, are null and void, by reason of the facts hereinbefore alleged, and said City of Portland and said common council thereof were without jurisdiction to make said assessment or do any of the aforesaid acts or proceedings, and that there is no valid assessment against any of said property of plaintiffs; and that said warrants have been issued without authority of law.” The last allegation, “that said pretended assessments against said property of plaintiffs, although apparently regular,” etc., is simply a conclusion which the pleader asserts, and nothing further need be said of it. 1. This suit involves , a direct attack upon the assessments, and, being so, it is incumbent upon the plaintiffs to show wherein the proceedings by which they were laid are a nullity. Some facts must be alleged by which the court can say, from an inspection of the complaint, by fair and liberal interpretation, that the record of the city is insufficient to support the assessments. The entire purpose of the suit is to remove an apparent cloud from the title of plaintiffs, and the assessments and the lien imposed thereby, by which the city is afforded a means of subjecting the property to sale to enforce payment, constitute the cloud. It is essential to the maintenance of such a suit to assert and establish (1) the particular muniment or record constituting the cloud; and (2) the infirmity attending it, which renders it a nullity as to the complainant, for, if he does not show it to be a nullity, he must fail of his purpose: O’Hara v. Parker, 27 — 392 — Or. 156 (39 Pac. 1004). To establish the infirmity, facts, not conclusions, must be alleged. It is a common occurrence that a muniment is void because of several facts. Take an ordinary title deed, for instance. It may be void as a conveyance because it does not contain the private seal of the grantor, or through want of a proper revenue stamp, or by reason of the grantor’s name having been forged thereto, or because he was forced to sign it through duress, or it was obtained by means of some designated fraud, or, as against-an innocent purchaser, that it was'not recorded. Now, only such of these facts as are set up can be proven; and, if a party neglects to state all those tending to invalidate the instrument, he cannot be permitted to prove such as he has omitted. They do1 not constitute or become issues in the case, and hence are foreign to the inquiry. It is unnecessary to cite authorities upon this proposition. It will be conceded. Let us now examine the complaint, and determine whether facts are alleged' pertinent upon which to base issues, as respects the two questions here sought to be presented. Giving the allegation (namely, “that said section 122 of said' charter,” etc.), the most liberal construction, it is not the equivalent of an allegation that notice was not given, or that no opportunity was afforded the plaintiffs of being heard upon the question of the proportion of costs to be assessed against each lot or parcel. 2. Since the case of Smith v. Minto, 30 Or. 351 (48 Pac. 166), we are not advised that the power of the common council to make improvements, under the latter clause of said section 122, has ever been questioned, where the insecurity or danger to persons or teams from the condition of the street is such as to require attention on the part of the council, to prevent injury or casualty. It should be noted, also, that the clause has been amended since the decision of that case so as to require the council to give ten days’ notice, by publication in some newspaper of the city, of the intended — 393 — improvement. Such notice was given in the present instance, but it is not requisite to the validity of the said section that it should provide for notice of the time and place of apportionment of the cost, nor is it even necessary that the charter should so provide. Such notice may be provided for by ordinance, and, when so provided for and given as to afford a reasonable opportunity for a hearing, it is amply sufficient; and such is the holding of this court in Wilson v. City of Salem, 24 Or. 504 (34 Pac. 9, 691). See, also, Paulson v. City of Portland, 16 Or. 450, 457 (19 Pac. 450); Paulson v. Portland, 149 U. S. 30 (13 Sup. Ct. 750). So the allegation that said section is unconstitutional and void because it does not provide for notice is without force or merit, as it may nevertheless be perfectly valid and operative. The preceding allegation is but an inducement to the one presently considered. 3. What other facts are alleged which go to the matter of notice? We are unable to find any such, and the same observation may be made as to the matter of assessments upon the basis of benefits. They are not to be found in the allegation of the location and ownership of property, nor in that showing the adoption of the resolution declaring the street dangerous and authorizing notice of intention to improve, and so on, through the whole category of facts stated in the complaint. In the allegation touching the adoption of the resolution requiring notice, it appears that the auditor was required to give notice that the council proposed to improve the street at the expense of the property holders liable therefor, as provided in sections 114 and 115 of the city charter; but this is the only reference made in the remotest degree to the manner of the assessment actually made by the council. This is far from! being the equivalent of an allegation that the assessments were made without reference to the benefits; but it is said we must assume that the council made the assessments under the charter, as it provides for — 394 — the only method by which it can be done, and the one prescribed is void, as inimical to the national constitution. If so, upon allegations of the nature under consideration, then must the courts look into- and determine the constitutionality of every city charter of the state, upon the mere suggestion that an assessment has been made in pursuance of charter provisions. This we cannot do, however. There must be facts alleged, relevant and pertinent, upon which to* base the issue; otherwise, it cannot be considered. That the questions sought to be presented are not within the issues is apparent from the findings of the court below. They cover every question of fact and conclusion of law presented by the pleadings, with possibly some exceptions of minor importance, and a careful reading of them will suffice to show that there is none upon the question of notice, except the one which determines, in effect, that section 122 of the charter is not unconstitutional and void because it does not provide for remonstrance or notice; nor is there any upon the question of apportionment of the costs according to benefits. These matters are not, by reasonable intendment and liberal construction, within the scope of the pleadings. Hence it is not proper for us to consider them. See, also, Cook v. City of Portland, 35 Or. 383 (58 Pac. 353), and Dewey v. City of Des Moines, 173 U. S. 193 (19 Sup. Ct. 379). There was a question of estoppel presented to the court below, upon the ground that plaintiffs had previously made a full improvement upon the same street, and therefore that they could not be required to make this. But it is now abandoned, upon the authority of Ladd v. City of Portland, 32 Or. 271 (67 Am. St. Rep. 526, 51 Pac. 654). Nor is it insisted here that the franchise granted to1 Frank Dekum and others to construct and operate a railway upon said street, upon the condition that they keep the same in repair, operates to prevent the city from making the improvement at the expense of the abutting property. — 395 — 4. The other questions presented are of fact, the first of which is whether the city acquired jurisdiction to make the improvement by reason of the dangerous, insecure, and unsafe condition of the street or roadway, within the purview and intendment of the latter paragraph or clause of section 122. It was said in Smith v. Minto, 30 Or. 351 (48 Pac. 166) : “The power of the council to proceed in the matter depended upon the fact of the street being unsafe and dangerous to persons and teams, within the meaning of the latter clause of section 120 (now 122), at the time the improvement was ordered,” which is a jurisdictional matter, and the findings of the city council are not conclusive thereon. In consequence of the large amount of testimony taken and submitted, it is not practicable, to do more than state our conclusions, without attempting to enter into details or to discuss largely its weight and sufficiency. The portion of East Water Street covered by the improvement in.question was first improved in 1871, by the construction of an elevated roadway 36 feet in width, upon a grade somewhat below the present one. This consisted of bents resting upon mudsills, stringers, and three-inch planking, and is denominated in the complaint a “full improvement.” In 1883 another full improvement was made upon said street, running as far north as East Washington Street, which includes all but two blocks of the space occupied by the present one. This structure rested upon piles set six feet in. the ground, braced by sway braces, surmounted by 1 ox 12-inch caps, resting upon which were seven rows of 4xi4-inch to 4x16-inch stringers; and these supported the decking, consisting of 4xi2-inch lumber. The bents were 20 feet apart, with five piles to the bent. The roadway from East Washington Street north was rebuilt in the years 1886 and 1887, and differed from that portion above described, in that the bents rested upon mudsills. Some time previous to 1891 the decking between Hawthorne Avenue and East Washington — 396 — Street became badly worn, and the city redecked 18 feet of it in the center, by putting down the new decking over the old. The high water of 1894 impaired the structure by raising the decking and stringers out of place. In some instances the piles were raised out of the ground, and in others the caps were lifted; the drift bolts driven through them into the piles being drawn out. The structure did not settle back to its place, which left it out of level. Repairs were subsequently made, and the surface, although not upon the grade, was put in condition suitable for use. ■ On August 7, 1895, more than a year later, H. D. Gradon, the superintendent of streets, made report to> the common council that said street was in an exceedingly dangerous condition; that repairs of a temporary nature could be made at a cost of $1,600, but that, in his opinion, it would be more economical to rebuild the entire structure; that it was costing the city $50 per month to repair the breaks in the roadway; and that serious damage to life and property might happen at any time. On the same day the council initiated the proceedings for the improvement. Before the work was ordered, however, a careful examination was made of the old structure by a committee of several gentlemen appointed for the express purpose. From among them, W. B. Chase, a civil engineer of considerable experience, was called as a witness in behalf of the city. He appears to- be intelligent and conservative, and we quote from his testimony, as containing a fair estimate of the condition of the old structure at the time the new improvement was directed to be made. When asked to describe the condition in which he found the bridge, he says: “I found some one had been under the bridge prior to' my visit and had chopped into nearly every pile, so that I had'a good opportunity of seeing the condition of them. Some one, also, prior to this time, had repaired or replaced some of — 397 — these round posts with square timbers. 1 think in the first 960 feet there were more than forty posts in of square timber. The balance of that distance had quite a number of such ones, but I did not count them. I counted that many first. Some of the piles were very much decayed, indeed. One instance, I remember. Some one had thrust a crowbar entirely through one. The marks of the ax indicated the rot was from three to four inches deep, down near the ground. At the top the piles were all decayed more or less where the caps rested on them. I found where sway braces had gone that there was more or less decay, and the bridge looked old and decayed and out of order, — all the substructure. * * * I considered that it was time to condemn the bridge. I have had a good deal to do with bridges, and I considered it time to condemn that bridge. That was the result of it. * * * We say that whenever a bridge is in such condition that it has not sufficient strength in all of its parts to‘ meet the emergencies that are liable to arise, or may arise at any time, that that structure is unsafe; and then we say that when, the cost of repairing a structure, or maintaining it, exceeds the interest of the cost of the new structure, it is time to rebuild it entirely. * * * I considered it unsafe. * * * I would apply it to both (the substructure and superstructure). The deck was especially bad, — the superstructure. The substructure, if you please, the posts, were so many of them bad that I would not com sider it advisable or desirable to place a new deck on it. Some of the posts were badly decayed, — to such an extent that, as an engineer, I could not take them or accept them as suitable posts for the structure.” When asked, “Was the decking in such condition as to meet the emergencies that were likely to arise?” he continues: “No, sir; I do not think so. Of course, it is possible that a man, by careful driving, could drive a heavy load over there; but that is.never proof that — 398 — a bridge, when decayed, is safe. It is evidence, however, but I would not have ordered a large load taken down over that bridge in the condition it was when I saw it. I consider it would have been extremely dangerous for the fire department, with its usual haste, to- pass over that roadway. I considered it a dangerous deck. * * * A structure twelve years old is generally worn out; not every stick is entirely rotted, but the joists, and wherever timber touches, are usually decayed, and the structure is so far gone that the percentage of repair is too- great to warrant the reconstruction. After twelve years these old bridges are subjects of a great amount of care on the part of the street department. We begin to know them as being unsafe and as needing constant attention. * * * There was a good deal of the timber had sound places in it, where it was free to the air, like the middle of a stringer; but nearly all of the timber had decayed portions, so- that I regarded it as unfit to- be placed in a new structure. It seemed to me that while there might have been here and there a few stringers that were sound for the time, the substructure was so bad that it would not warrant their use, and after a good deal of consideration I concluded that the bridge ought to have been condemned and rebuilt as it was.” There is a good deal of evidence going much further than this. Mr. Hall, a councilman, who was on the street committee, and made a special examination of the old structure, says: “It was in a very dangerous condition,” and “not a great deal of what you would call sound timber in it.” George C. Flanders says, “The bridge was in a very rotten condition.” O’Neil testifies that “the- stringers were all rotten where the}'- rested on the caps”; and Hurlburt, that he “considered the roadway practically beyond repair.” There is much testimony going to the establishment of a contrary view, but, upon the whole, we are of the' opinion that the common council was warranted in making the improve — 399 — ment. It is very significant that the structure of 1871 lasted but twelve years, while it was subjected to repairs in the meanwhile. The structure of 1883 was about the same age when it was condemned and replaced by the present one. True, it was built upon piles, while the other rested upon mudsills, and may have been more durable; but the high water of 1894 impaired it very materially, and tended generally to its deterioration. Mr. Chase testifies that the lifetime of timber such as was contained in the bridge is from nine to eleven or twelve years. So, when considered in the light of the probable longevity of such a structure, we find that the old one had outlived its • usefulness, and was about approaching the time when it would be expected to succumb to the elements. Hence we conclude that the weight of the testimony is in harmony with the idea, that it was dangerous and unsafe for men and teams to pass along and over the same at the time the new structure was directed to- be built. 5. It is claimed that the bids for the improvement were collusive, and that the one accepted by the council was unreasonable, being at least 33 1-3 per cent, in excess of the reasonable cost and value thereof; that the reasonable cost of the work advertised for did not exceed the sum of $8,500, whereas the bid accepted was $11,824.31; and that it was the duty of the council to have declared the same unreasonable and rejected it, they having had full knowledge of the character of the bid in this respect. Fraud is therefore attributed to the common council in letting the contract. It is not claimed that the council intentionally or actively participated in the alleged fraud, but that what they did, under the circumstances and conditions attending the letting of the contract, was constructively fraudulent, in so far as it affects the abutting property holders. It is first argued that the bids of F. H. Young and O’Neil & Lind, being the only ones submitted, were collusive, because, as Lind testifies, Young made the estimate of the cost of the work upon which O’Neil — 400 — & Lind based their bid, and that it appeared upon the face of the bids that Young's bid was about ten per cent, higher on each item than that of O’Neil & Lind. But the council knew nothing at the time as to who made the estimate, nor did they have any intimation that O’Neil & Lind based their bid upon the estimate made by Young, neither is it so contended. The bids, however, showed for themselves, but the fact that one was ten per cent, higher than the other generally was a mere coincidence, which would not ordinarily attract notice. The most suggestive indication of fraud is that the bid accepted was excessively high. Section 118 of the charter requires that the work must be let to the lpwest responsible bidder, but that the council may provide for the rejection of any and all bids when deemed unreasonable. Under this section, the council were to1 be the judges whether the bid was unreasonable, and, without direct evidence showing a fraudulent purpose, the bid must have been grossly in excess of the fair value of the construction of the improvement to warrant a charge of fraud. Some estimates of the cost of' the improvement, including what was considered a reasonable profit, ranging from $8,400 to $8,800, were submitted in evidence; but much more testimony was offered by way of comparison with the cost of the improvement made in 1883, which, it must be admitted, was very unsatisfactory and unreliable as a basis for the ascertainment of the actual value of constructing the present one. A feature of some importance to> be considered is that the warrants such as the city issued in payment for work of the kind were selling in the market at a large discount, which was taken into' consideration by the contractors in arriving at the amount of their bid. Lind says that 75 to 80 cents was all they could get for the warrants. This fact may have had much influence upon the council, as it could not be expected that the work could be done at its cash value when payment was to be made — 401 — in depreciated warrants. Without pursuing the subject further, suffice it to say that the bid does not appear to be so greatly excessive as that it was fraudulent per se for the council toi accept it and let the contract accordingly. It would have been a palpable fraud, imputable to the common council in letting the contract, if it could be said under the evidence that the bid or price paid for the work was largely in excess of the reasonable and fair value thereof, and of any sum which common prudence and honesty would dictate that it ought to cost; but where the difference in price and cost or value of the work is such only as can be fully accounted for upon the theory that it has been merely improvidently, or perhaps extravagantly, done, a case is not made for the interference of the court. In re Livingston, 121 N. Y. 94 (24 N. E. 290); In re Leake & Watts Orphan Home, 92 N. Y. 116. While it would seem that the council cannot be held to' be altogether blameless, there is not sufficient in the case to impute positive fraud to them, such as will void the assessment. And lastly it is urged that the work done was not in accordance with the contract, and that the assessment should be annulled for that reason. But we are satisfied from a careful survey of the evidence that there exists no sufficient cause to disturb the proceedings after the approval and acceptance of the improvement by the lawfully constituted authorities: Chance v. City of Portland, 26 Or. 286 (38 Pac. 68). The decree of the court below will therefore be affirmed, and it is so ordered. Affirmed.