Wagoner v. City of La Grande

MoCAMANT, J. — 1, 2. A preliminary question is discussed in the briefs as to the validity of the amendment of the charter attempted in December, 1915. The proceedings in connection with the amendment have not been received in evidence. The amended complaint, after referring to the amendment of the charter made in 1913, alleges: “That thereafter on December 13th, 1915, upon initiative petition, there was attempted to be enacted and passed by a majority vote of the legal voters of the said City of La Grande, at an election duly and regularly held in said city for said purpose a ‘Proposed Amended Charter of the City of La Grande, Union County, State of Oregon,’ the title of said act being ‘An Act to Amend the Charter of the City of La Grande, in Union County, Oregon,’ with the words added thereto as follows: ‘ Shall the proposed amendment of the charter of the City of La Grande, Oregon, including the amendment of said charter providing for reassessment for street improvements already made be adopted?’ a true and correct copy of said so-called amended charter is hereto attached marked Ex198 libit ‘CP and is made a part of this amended complaint.” Elsewhere the pleader speaks of the charter of 1915 as the “amended city charter.” The only allegation in the amended complaint wlicl specifically attacks the procedure by wlicl the amendment was made is the following: ‘ ‘ Tlat said pretended amendment above set out and contained in the said pretended Charter of 1915, is not germane to the ballot title of said pretended Amended Charter, and said ballot title was and is misleading, and tlat the whole of said pretended amendment was and is void. ’ ’ On the trial of the cause counsel for plaintiffs made the following admission: “The document marked C is called the Proposed Amended Charter of the City of La Grande, of December 13, 1915, is the document under which the present commission of La Grande is acting, is the present city charter. We do not admit they are regularly passed, but we admit they are what they purport to be to that extent.” In this condition of the record plaintiffs are entitled at most to a determination of the sufficiency of the title of the act and of the ballot title under which the amended charter was submitted to the voters of La Grande. They admit that the 1915 charter is tlat under wlicl the city is now operating. If they claim it is invalid for any reason they should point out the ground of the invalidity. The ballot title was as follows: “Shall the proposed amendment of the charter of the City of La Grande, Oregon, including the amendment of said charter providing for reassessment for street improvements already made be adopted?” The title of the act is as follows: — 199 — “An Act to Amend the Charter of the City of La Grande, in Union County, State of Oregon.” It is held that the provisions of state Constitutions on the subject of titles and styles of acts have no application to municipal ordinances: Colby v. Medford, 85 Or. 485, 508 (167 Pac. 487); Ex parte Haskell, 112 Cal. 412 (44 Pac. 725, 727, 32 L. R. A. 527); City of Tarkio v. Cook, 120 Mo. 1 (25 S. W. 202, 41 Am. St. Rep. 678); 28 Cyc. 378. The first of the above cases expressly holds that the provisions of the Oregon Constitution on this subject have no application to measures for the amendment of city charters. We think that the title of the act is sufficient. The ballot title expressly directed attention to the amendment to the charter authorizing these assessments. It was sufficient within the rule announced in State v. Langworthy, 55 Or. 303, 312 (104 Pac. 424; 106 Pac. 336). The amended complaint admits that the election at which the charter was adopted was duly and regularly held. It follows from this admission that every voter received a copy of the proposed amendment with the official arguments, if any, for and against its adoption: Sections 3478, 3480. We must assume that the electors voted intelligently and there is nothing in the record to impeach the validity of their action. The amendment on the subject of reassessments is substantially identical with Section 400 of the Portland Charter which has been construed in Kadderly v. Portland, 44 Or. 118, 159, 160 (74 Pac. 710, 75 Pac. 222); Duniway v. Portland, 47 Or. 103, 108-112 (81 Pac. 945); Hughes v. Portland, 53 Or. 370, 383-393 (100 Pac. 942); Terwilliger Land Co. v. Portland, 62 Or. 101, 111 (123 Pac. 57); Wilson v. Portland, 87 Or. 507 (169 Pac. 90, 92, 171 Pac. 201). It is also substan — 200 — tially identical with. Section 132a of the Medford Charter which was construed in Phipps v. Medford, 81 Or. 119 (156 Pac. 787, 158 Pac. 666). These decisions cover the whole subject of reassessment and leave little for us to do in this case except to apply the principles announced to the facts disclosed by this record. 3. The amended charter provides: “Such reassessment shall not be made in case of a street or alley improvement wherein a remonstrance, sufficient in law to defeat the original improvement, shall have been filed prior to the making of the improvement.” Two remonstrances were filed by property owners prior to the making of the improvement, but the charter of 1909 which was then in force contained no provision whereby a remonstrance was effectual to defeat an improvement. We think that the language above quoted is for this reason without application to these remonstrances. It is provided in subdivision 5 of Section 10 of the Charter of 1915, “that if the owners of fifty-five per cent of the property to be affected by said improvement, measured by the front foot, object to such improvement, the Commission shall be ousted of jurisdiction for a period of six months thereafter.” The language in the reassessment provisions of the Charter of 1915 on the subject of a remonstrance is referable only to this provision of the same charter. 4. It is claimed that the original proceeding was fraudulent and that for this reason a reassessment could not be made. The evidence fails to sustain plaintiff’s allegations of fraud. Furthermore, it is held in Duniway v. Portland, 47 Or. 103, 112 (81 Pac. 945), that the fraud which will defeat a reassessment is fraud of the council in the reassessment proceeding. There is no evidence of such fraud in this case. — 201 — 5, 6. Plaintiffs contend that the original contract under which the work was done was void for a number of reasons and that this fact precludes a reassessment. It was held in Birnie v. La Grande, 78 Or. 531 (153 Pac. 415), that the council never acquired jurisdiction to proceed with the improvement and it follows from this circumstance that the contract was void. A lack of jurisdiction in the original proceeding- will not defeat the reassessment: Nottage v. Portland, 35 Or. 539 (58 Pac. 883, 76 Am. St. Rep. 513); Phipps v. Medford, 81 Or. 119 (156 Pac. 787, 158 Pac. 666); Wilson v. Portland, 87 Or. 507 (169 Pac. 90, 171 Pac. 201). The fact that the work was done under a void contract will not preclude a reassessment of- the property where the statute authorizes such reassessment: 2 Page and Jones on Taxation by Assessment, 961; Cawker v. Milwaukee, 133 Wis. 35 (113 N. W. 417); Tuttle v. Polk, 84 Iowa, 12 (50 N. W. 38, 39, 40); St. Paul v. Mullen, 27 Minn. 78 (6 N. W. 424); State v. District Court, 102 Minn. 482 (113 N. W. 697, 700 114 N. W. 654). It is argued that the work done does not conform to the plans and specifications, but the preponderance of the testimony is with defendants on this issue. 7. It is contended that the price to be paid for the work was excessive. As to this contention it is enough to say that the price is not so grossly excessive as to imply fraud and in the absence of such a situation the price was within the discretion of the council. 8. Plaintiffs contend that the improvement did not benefit their property and that therefore the council had no right to reassess for the collection of its cost. Plaintiffs produce cogent testimony to the effect that the improvement is out of proportion to the value of their property. If we had jurisdiction to review the — 202 — legislative acts of the council, this record would appeal to us persuasively, hut we have no such jurisdiction. It was for the council to determine what streets in La G-rande should be smooth-surfaced. Before making the final reassessment the defendants fixed a time for hearing objections thereto and published a notice for three weeks, as required by the 1915 charter. This notice directed the attention of property owners interested to the preliminary assessments on file in the office of the city recorder and notified them of the time set for the hearing of objections. Written objections were filed and at the time stated in the notice and at an adjourned meeting of the council held for such purpose plaintiffs appeared by counsel and furnished testimony in support of their objections. The council duly heard the testimony and argument of plaintiffs and thereupon determined that the property in the district fixed by a previous ordinance was specially benefited by the improvement to the extent of 75 per cent of the amounts severally assessed at the time the improvement was made. 9. In 1 Page and Jones on Taxation by Assessment, 533, it is said: “The question of benefit to the property owner is not a judicial question unless the court can plainly see that no benefit can exist and, this absence of benefit is so clear as to admit of no dispute or controversy by evidence. ’ ’ Plaintiffs’ testimony does not meet these requirements. That we cannot review the action of the council in the matter of benefits so determined is taught by Hughes v. Portland, 53 Or. 370, 394 (100 Pac. 942), and Phipps v. Medford, 81 Or. 119, 131, 132 (156 Pac. 787, 158 Pac. 666). The objections of these plaintiffs do not go to the matter of the apportionment of the — 203 — cost of the improvement among the owners of abutting property. Plaintiffs contend that the council erred in fixing the district to which the expense should be chargeable. This determination is a legislative act which the court cannot review: Bauman v. Ross, 167 U. S. 548, 589, 590 (42 L. Ed. 270, 17 Sup. Ct. Rep. 966); Ellwood v. Rochester, 122 N. Y. 229 (25 N. E. 238); Chicago Co. v. Centerville, 172 Iowa, 444 (153 N. W. 106, 107, 154 N. W. 596); Rolph v. Fargo, 7 N. D. 640 (76 N. Y. 242, 251, 42 L. R. A. 646); King v. Portland, 38 Or. 402, 414 (63 Pac. 2, 55 L. R. A. 812); Cooley on Taxation (2 ed.), 149. 10. It is the rule in this jurisdiction that where objections to a municipal improvement involve questions of fact, the record must affirmatively show a finding upon them by the council: Applegate v. Portland, 53 Or. 552, 555, 556 (99 Pac. 890). It is intimated in Hughes v. Portland, 53 Or. 370, 388 (100 Pac. 942), that is should appear either in the original proceeding or in that brought for reassessment purposes that the objections raised by property owners in so far as they involve questions of fact have been heard and determined by the council. The record shows that two protests were filed prior to the making of the improvement and a third one was directed against the reassessment. The first of these was filed by Turner Oliver, October 16,1912. It urged that the price to be charged for the work was excessive and that the contract was to be let without competition. The second protest, signed by sundry property owners, was filed April 2, 1913. It alleged that the price named in the contract with Warren Construction Company was excessive and that the specifications were not sufficiently precise. The third protest, filed April 5,1916, made the following contentions: — 204 — 1. "Want of jurisdiction to reassess because of adjudications that the proceedings taken were ineffectual ; 2. Failure of tbe council to create an assessment district prior to tbe making of tbe improvement, in tbe manner prescribed by tbe charter or at all; 3. Want of jurisdiction to make the improvement originally; 4. Want of jurisdiction to contract with Warren Construction Company; 5. Lack of authority to reassess under the charter as amended in 1913; 6. Lack of power in the voters of La Grande so to amend the charter in 1915 as to authorize this reassessment, also inadequacy of the amendment to justify the action taken by the council; 7. Lack of power in the council to levy a reassessment in excess of the special benefits; 8. That the improvement as made did not comply with the plans and specifications; 9. That the Warren Construction Company had waived interest on the warrants issued to it and that the property owners should therefore be charged no interest. 11. These protests for the most part raised questions of law. The only questions of fact presented by them are that the price charged for the work was excessive,' that the work was not done in accordance with the plans and specifications, that interest had been waived on the warrants and was therefore not chargeable on the reassessment, and that the council had failed to create an assessment district prior to the performance of the work. The first and the last of these objections were insufficient in law and therefore required no notice from the council. In the absence of fraud the price to be paid for the improvement was a matter within the discretion of the council. The failure of the council to create an assessment district — 205 — prior to the performance of the -work did not preclude a reassessment for the purpose of charging the property benefited with a portion of the cost commensurate with the special benefits: Thayer Lumber Co. v. Muskegon, 157 Mich. 424 (122 N. W. 189); Wiese v. South Omaha, 100 Neb. 492 (160 N. W. 890). The other questions of fact were passed on by the council either directly or inferentially as will appear from the following recitals in the Resolution of Reassessment : “The commission now finds that the said improvement of Fourth Street, as set out in said Resolution of March 1, 1916, was constructed substantially in accordance with the plans, specifications and contract therefor; that the total cost of such improvement was the sum of $41,317.46; that the property in said reassessment distinct Number 54 mentioned and described and reassessed in the said preliminary reassessment was specially benefited by the improvement of the said Fourth Street as set out in said Resolution of March 1, 1916, to the extent of 75 per cent of the several amounts assessed to each separate lot, parcel or tract of real estate in and by said reassessment without interest thereon.” It will be noted that the property owners were relieved of the interest -burden and also of 25 per cent of the amount of the original liens. 12. It is held in Terwilliger Land Co. v. Portland, 62 Or. 101, 110, 111 (123 Pac. 57), that where a contract for a municipal improvement is let without competition in violation of a charter requirement which provides that it be let to the lowest bidder, the improvement is so charged with illegality that it cannot form the basis of a reassessment. Plaintiffs claim that this principle is fatal to the reassessment in the case at bar. In the Terwilliger Land Company case and the other Oregon cases which have followed it, the decisions are based — 206 — on charter requirements that the contracts he let to the lowest bidder. We find no such provision in the La Grande charter of 1909, under which this work was done. On the contrary, by Section 37 of this charter the council is granted plenary power “to grade, pave, * * curb or otherwise improve the * * streets * * of the City.” It is argued in one of plaintiffs’ briefs that there was a municipal ordinance which required the letting of contracts to the lowest bidder, but no such ordinance was offered in evidence nor was it pleaded in the manner required by Sections 90 and 3244, L. O. L. We cannot take judicial knowledge of the existence of such an ordinance: Pomeroy v. Lappens, 9 Or. 363, 364; Dailey v. Cremen, 80 Or. 183, 188 (156 Pac. 797). 13,14. Assuming without deciding that it was the duty of the municipal authorities to let contracts for street improvements through competitive bidding, it does not appear that this principle was violated in the contract made with the Warren Construction Company. It is established that on May 10,1912, Warren Brothers Company filed with the city recorder a license for the use of its patented Gravel Bitulithic Pavement almost identical with that upheld by this court in Johns v. Pendleton, 66 Or. 182 (133 Pac. 817, 134 Pac. 312, Ann. Cas. 1915B, 454, 46 L. R. A. (N. S.) 990). The price exacted under the license is identical with that approved in the foregoing case. The doctrine of Johns v. Pendleton has been approved in Sherrett v. Portland, 75 Or. 449, 463 (147 Pac. 382), and Temple v. Portland, 77 Or. 559, 563 (151 Pac. 724). This latter case is invoked by plaintiffs as an authority to support their contention that the contract was let in this case without real competition. The cases are alike only in the fact that in each case a patented — 207 — pavement was specified. In the Temple case the owner of the patent had filed no license authorizing bidders to use the patented material; moreover, the work included the laying of sidewalks and bids were called for in such a way as to preclude the construction of the sidewalks by anyone other than the owner or licensee of the patent. The illegality of the contract in the Temple case was predicated in part on the fact that “a considerable and substantial portion of the improvement could have been segregated from the Hassam pavement” and that this was not done. The contract under which the work in the instant case was done called for no sidewalks. The excavation, drainage and curbing provided for in the contract were all incidental to the paving. It was clearly within the discretion of the council to let the work in one contract. Some question is made as to the filing of the license by Warren Brothers Company, but plaintiffs have established nothing in this branch of their case except that the city recorder put the paper where it was not readily found and that he indexed it in a way which did not greatly assist in the search. These are insufficient reasons for ignoring it. Plaintiffs rely largely on McMillan v. Barber Asphalt Co., 151 Wis. 48 (138 N. W. 94, Ann. Cas. 1914B, 53). The contract in that case was tainted with fraud in that it was secured by the bribery of a councilman. Pending proceedings to enjoin its performance the city completed the work and the contract was subsequently held fraudulent and illegal by the court of last resort. The case holds that a work done under an unlawful contract cannot be made the basis of a reassessment proceeding. It is difficult to reconcile this case with the opinion of Mr. Chief Justice Wolverton in Duniway v. Portland, 47 Or. 103, 112 — 208 — (81 Pac. 945); in any event the case at bar is wholly unlike the Wisconsin case in its facts. The contract under which the work was done in the instant case was void for the reasons pointed out in Birnie v. La Grande, 78 Or. 531 (153 Pac. 415), but it was neither fraudulent nor illegal. 15,16. We must assume that the people of La Grande acted intelligently when they amended their charter in 1915; that they intended to vest the city with the powers possessed by Portland and by Medford, powers well defined by the decisions of this court. It was competent to make these powers retroactive and the amendment adopted had that effect: Nottage v. Portland, 35 Or. 539, 552 (58 Pac. 883, 76 Am. St. Rep. 513); Kadderly v. Portland, 44 Or. 118, 159, 160 (74 Pac. 710, 75 Pac. 222). The far-reaching effect of the amendment of the charter on the subject of reassessment is clearly pointed out by Mr. Justice Burnett in Phipps v. Medford, 81 Or. 119, 130 (156 Pac. 787, 158 Pac. 666). The legislation is remedial and is to be construed in such manner as to effectuate the purpose of the electors in adopting it: Nottage v. Portland, 35 Or. 539, 548 (58 Pac. 883, 76 Am. St. Rep. 513). The city authorities in making the reassessment conformed strictly to the procedure prescribed by their amended charter and the lower court did not err in adjudging the validity of the liens created by the reassessment. 17. The plaintiffs Hansen, Horstman and Eastman made application to pay the liens levied on their property ih ten annual installments. As required by Section 3245, L. O. L., their applications contained the following waiver: “I hereby expressly waive all or any irregularity or defect, jurisdictional or otherwise, in the proceedings to improve said street.” — 209 — This waiver is alleged in the answer and established by the proof. These three plaintiffs are concluded by this circumstance, even if their contentions were otherwise meritorious: Parker v. Hood River, 81 Or. 707, 709, 710 (160 Pac. 1158). The decree is affirmed. Affirmed. Rehearing Denied.