Evans v. City of Helena

Opinion PER CURIAM. Action was brought to procure an injunction restraining defendants from entering into a contract with one Frank J. McHugh for paving streets within improvement district No. 125 — 586 — within the city of Helena. Upon filing complaint, application was made for a temporary injunction, which was granted. Defendants have appealed from the order granting the temporary injunction. [1] On the second day of March, 1920, the council of the city of Helena passed a resolution of intention to create the improvement district; the portions of the resolution of importance to the issues here involved being as follows: “That it is the intention of the city council of the City of Helena to create a special improvement district, to be known and designated as special improvement district No. 125, for the purpose of paving with reinforced concrete pavement, with the necessary excavations, cutting, filling, grading, curbing, and incidental work therewith and therefor. * * * The general character of the improvements to be made in said district is to pave the above named streets with reinforced concrete paving, six inches thick, together with the necessary excavating, cutting, filling, grading, curbing, and incidental work therewith and therefor, under specifications to be adopted by the city council of the City of Helena. * , * * That the approximate estimate of costs of said improvements, including the clerical work, engineering, and supervision, is the sum of $340,000.” The streets withifi the improvement district vary in width from thirty-one to forty-one feet. There are parking and curbing on these streets, which have heretofore been installed under proceedings in other special improvement districts at the expense of the property owners. There is nothing in the resolution of intention to install storm sewers, extend the parking, or to completely tear out the old curbing and install new curbing. Subsequently the district was created, advertisement for bids for the construction of proposed improvement was made, and the bid of Frank J. McHugh was accepted at the sum of $349,543.34. The plans and specifications upon which the bids were made involved the construction of storm sewers in the streets covered by the pavement, pavement of the streets to the width of twenty-five feet, the tearing out of the — 587 — old curbing in its entirety, and tbe installation of new curbing and extension of the parking on each side of tbe proposed pavement from the line of tbe present curbing to tbe line of tbe proposed new curbing. Under tbe proposed contract the contractor will be paid by district warrants. John D. McLeod and John Dryburgb, two of tbe city commissioners, testified relative to tbe value of tbe warrants as reflected in tbe price for tbe work. Mr. McLeod testified that, in connection with tbe consideration of tbe bids and as to whether or not they were reasonably fair in amount, be considered tbe depreciated value of tbe warrants, and that be considered such value on tbe basis of ten per cent discount and awarded tbe contract on that basis. Mr. Dryburgb testified that be bad reason to believe that tbe warrants would be disposed of by tbe contractor at less than par, and that if be bad known that these warrants were worth cash be would not have been disposed to accept tbe offered bids as reasonable, and that tbe council certainly would have gotten a better bid if tbe warrants could have been sold at par. One John Tripp also testified that be was a bidder for tbe contract, and that in making bis bid be did it on the basis that tbe warrants would be worth only ninety cents on tbe dollar. This constituted all tbe testimony on this feature of tbe case. These facts present two questions for our determination tbe decision of which will dispose of tbe case: (1) In letting tbe contract, was there a substantial departure from tbe improvements set forth in tbe resolution of intention? (2) Is it permissible for tbe city to enter into a contract whereby payment for services to be rendered shall be made by warrants at a depreciated valuation? Other reasons were urged in support of plaintiffs’ contention that tbe making of tbe contract should be enjoined, but it will be unnecessary to consider such other contentions. In this case no question as to jurisdiction arises, there being no contention made respecting tbe legality of tbe creation of tbe paving district. In fact, it is conceded that tbe district — 588 — was legally created; but the proceedings subsequent to the organization of the district are the subject of attack, primarily the McHugh contract, which is made the basis of this decision. The record clearly discloses that the plans and specifications for the paving, and proposed contract with Frank J. McHugh for the execution of the work, departed materially from the resolution of intention and that creating the district. The resolution of intention gave no indication that- there would be a reduction in the width of the paving of the streets from the existing street widths between present curbs, or that new parking or parking extension was in contemplation, or that there would be a destruction or replacement of street curbing or new curbing, or that the installation of storm sewers was a part of the proposed improvements. However, it is contended by counsel for the defendants that all such changes and additions were legally warranted by virtue of the use of the words “incidental work” contained in the resolution of intention, and that the judgment and discretion vested in the city council in dealing with the subject for the best interest and advantage of the city authorizes the inclusion of such additional improvements. [2] Section 3, Chapter 89, of the Laws of 1913, as amended by section 2 of Chapter 142, Laws of 1915, provides in part as follows: “Before creating any special improvement district, for the purpose of making any of the improvements, or acquiring any private property for any purpose authorized by this Act, the city council shall pass a resolution of intention so to do, which resolution shall designate the number of such district, describe the boundaries thereof, and state therein, the general character of the improvement or improvements which are to be made, and an approximate estimate of the cost thereof.” It would require a very strained construction of language to hold that “incidental work” to paving, by implication, includes the several subjects embraced in the contract, each of which constitutes a class or a distinct city — 589 — improvement. (See Chapter 89, Laws 1913, as amended by Chapter 142 of the Laws of 1915.) That “incidental work” is not a sufficient description of “the general character of the improvement or improvements” in the resolution of intention is manifest. From the resolution of intention and notice given to the taxpayers affected in connection with the creation of improvement district No. 125, no one can reasonably be held to have been advised by the general designation of paving and “incidental work” that any improvement other than the paving of the streets was designed or intended, for within the district large portions of territory have already been included in parking, curbing, and sewer districts. Pertinent to the case before us, it was well stated by Mr. Chief Justice Brantly, in his dissenting opinion in the case of Mansur v. City of Poison, 45 Mont. 596, 125 Pac. 1002, as follows: “The term ‘character,’ ” as used in the statute, “is perhaps the most general that could have been employed. Even so, it must be assigned such a meaning as will effectuate the purpose had in view, vis., that the improvement be so described by a statement of the dimensions, materials, etc., that the lot owner may determine whether he will acquiesce, and thus consent, or appear at the appointed time and seek to arrest further proceedings. He ought not to be compelled to suffer inconvenience incident to leaving his business to seek, and make an inquiry of, members of the council or of the officer or officers who will have charge of the contemplated improvement. It is entirely possible that in a given case such inquiry would be futile, because definite information could not be obtained from any one of these officers. Indeed, this was the case here; for the record shows that the city engineer did not submit an estimate of the cost of the improvements or prepare plans and specifications until after the time for making objections had passed.” It is the established rule of law that the city council, in the resolution of intention, must describe the character and — 590 — nature of the improvements, with sufficient particularity in order that the taxpayers affected may be fully advised, and the improvements to be made must correspond substantially with those set forth in the resolution of intention and no material change or departure therefrom can be made. (Mansur v. City of Poison, 45 Mont. 585, 125 Pac. 1002; Clay v. City of Grand Rapids, 60 Mich. 451, 27 N. W. 596; Peck v. City of Grand Rapids, 125 Mich. 416, 84 N. W. 614; McBean v. Redick, 96 Cal. 191, 31 Pac. 7; Mason v. City of Sioux Falls, 2 S. D. 640, 39 Am. St. Rep. 802, 805, 51 N. W. 770; Piedmont v. Allman, 136 Cal. 88, 68 Pac. 493; Partridge v. Lucas, 99 Cal. 519, 33 Pac. 1082; La Franchi v. City of Seattle, 78 Wash. 158, 138 Pac. 659; Jones v. Barber A. P. Co., 174 Mo. 393, 160 S. W. 279; San Jose Co. v. Auzerais, 106 Cal. 498, 39 Pac. 859; Pacific Paving Co. v. Verso, 12 Cal. App. 362,. 107 Pac. 590; Bay Rock Co. v. Bell, 133 Cal. 150, 65 Pac. 299; Cass v. People ex rel. Kochersperger, 166 Ill. 126, 46 N. E. 729; People ex rel. Kochersperger v. Hurford, 167 Ill. 226, 47 N. E. 368; Sanger v. City of Chicago, 169 111. 286, 48 N. E. 309; Lambert v. Cummings, 2 Cal. App. 642, 84 Pac. 266; Fay v. Reed, 128 Cal. 357, 60 Pac. 927; City of Geneseo v. Brown, 250 Ill. 165, 95 N. E. 172; City of Kirksville v. Coleman, 103 Mo. App. 215, 77 S. W. 120; Ladd v. Spencer, 23 Or. 193, 31 Pac. 474; Schwiesau v. Mahon, 128 Cal. 114, 60 Pac. 683; Smith v. City of Chicago, 214 Ill. 155, 73 N. E. 346; Buckley v. City of Tacoma, 9 Wash. 256, 37 Pac. 441.) “These proceedings have for their ultimate purpose the subjecting of the property within the district to taxation to bear the cost of the improvements. They are in invitmn, and in recognition of these facts the legislature has provided a complete, but direct, plan of procedure designed to protect property from confiscation and at the same time permit beneficial improvements to be made.” (Johnson v. City of Hardin, 55 Mont. 574, 179 Pac. 824; see, also, Hinzeman v. City of Deer Lodge, 58 Mont. 369, 193 Pac. 395.) — 591 — As is well stated by Mr. Chief Justice Campbell in Clay v. City of Grand Rapids, supra: “If a city council can do one thing and call it something else, so as to confound roads with sewers, and the repair of one with the building of the other, there is no safety to citizens against the grossest usurpations and injustices.” Any one or all of the several improvements contemplated may be included in the resolution of intention, but each separate character of improvement must be embraced by specific mention and at least a general description. (Sec. 2, Chap. 142, p. 343, Laws 1915; Piedmont Paving Co. v. Allman, supra; Partridge v. Lucas, supra; Himmelmann v. Satterlee, 50 Cal. 68; Beaudry v. Valdez, 32 Cal. 270; Donnelly v. Howard, 60 Cal. 291; Mason v. City of Sioux Falls, supra.) Ordinarily the courts will not interfere with the judgment and discretion vested in the city council in the making of such street improvements, where it acts within jurisdiction and the resolution of intention and notice sufficiently describe the work and improvements contemplated; but where the improvements about to be made are essentially different from those authorized by the resolution, and the cost of the same is materially increased, the courts will interfere, although as regards the work to be done a substantial compliance with the resolution is all that is necessary. (Hamilton on Law of Special Assessments, sees. 391, 392; Mansur v. City of Poison, supra.) [3] Section 26 of the Act (Laws 1913, Chap. 89, p. 411) declares: “Whether provided in the call for proposals or not, all warrants let under the provisions of this Act shall be payable in bonds or warrants issued under the provisions hereof, and the city council may provide by contract with the person, persons or corporation doing the work or making the improvement for the payment of which such warrants or bonds are issued, to deliver the said warrants or bonds in installments as the work progresses, or upon the entire completion thereof: — 592 — Provided, however, that no warrants or bonds roust be delivered to such contractor or contractors in excess of the amount of the work actually done at the time of the delivery, nor shall the total amount issued be in excess of the total cost and expense of the said improvements, and no warrants or bonds shall be delivered or received in payment of a less sum than its face value. And when it becomes necessary to pay for private property taken for the opening, widening or extending of any street, avenue or alley, or to pay any amount awarded or recovered on account of damages to any property caused by the making of any improvements in money, in cases where the person whose property is so taken or damaged refuses to receive his pay in warrants or bonds, then the council shall have the power, under such regulations as it may prescribe, to sell such bonds or warrants for not less than par, and devote the moneys derived therefrom to the payment of the damages assessed or agreed upon for such property or the damages thereto.” This provision is crudely and awkwardly expressed. It requires no argument, however, to sustain the proposition that the fundamental idea in the mind of the legislature in enacting it was that the city council should not have power under any circumstances, directly or indirectly, to issue bonds or warrants of the district at a discount, but, on the contrary, that the price at which they should be issued and delivered for any work should be measured by the actual cost of it in cash. This is made clear by the expressions found in the proviso; i. e.: “No warrants or bonds must be delivered to such contractor or contractors in excess of, the amount of the work actually done at the time of the delivery, nor sball the total amount issued be in excess of the total cost and expense of the said improvements,” and “no warrants or bonds shall be delivered or received in payment of a less sum than its face value.” If we keep in mind the fact that section 25, as amended (Laws 1915, p. 340), expressly provides that the rate of interest upon the bonds or warrants of the district shall not exceed — 593 — six per cent per annum, it becomes manifest that the legislature intended to prohibit the council from paying for any work in bonds or warrants which cannot, at the time of the delivery, be sold upon the market for their face value. In thus limiting the rate of interest to six per cent, the legislature evidently entertained the idea that the condition of the market for bonds or warrants of the description under consideration would sometimes be such that there would be no sale for them, except at a discount, and therefore that while this condition should exist, cities should not be allowed to install improvements of any kind, the purpose being to prevent extravagance and waste. That this is the correct view is further emphasized by the provision in the latter part of section 26, supra, allowing the council the alternative of paying damages for property taken or damaged in making any improvement by delivering bonds or warrants of the district to the owner of the property or, in case he refuses to accept them, to sell them in the market for not less than par and pay him in cash. Counsel for city insists that inasmuch as the proposed contract will call for the payment of the price of the improvement in bonds or warrants at their face value, this amounts to a strict compliance with the requirement of the statute. In other words, he says that the statute contemplates that bonds or warrants of any improvement district will, at times, be worth less in the market than their face value, and therefore that, inasmuch as the contractor proposes to take the bonds or warrants at their face value for the work done, though in making out his bid he made an allowance for a discount of ten per cent, the statute will not, in fact, be violated. It is clear, however, that it will be as much a violation of the statute for the city council to contract to pay $100 in bonds or warrants for work which costs only $90, as it is for the council to pay $110 for work that costs only $100. Here the proposed price for paving the streets and doing the incidental work was fixed at $349,543.34. This was arrived at by the — 594 — contractor by adding to the actual cost ten per cent because the warrants he expected to receive would, in view of the condition of the market, sell for only ninety cents on the dollar. The council intended to let the contract, fully understanding the basis upon which the contractor made his calculation. Any way the proposed contract may be viewed, the result will be an agreement by the council to issue and deliver the bonds or warrants of the district at a discount. It amounts to an agreement to do indirectly that which the council is expressly prohibited from doing directly. Therefore there will be a clear violation of the statute, and the second question, stated supra, must be answered in the negative. For the reasons stated, a temporary injunction was properly issued 'by the trial court, enjoining and restraining the defendants from entering into the proposed contract with McHugh, and the order is affirmed, though modified to conform to this opinion.