Perkins v. City of Pawhuska , 106 Okla. 5 ( 1924 )

Plaintiff's arguments and authorities for a reversal of this case are presented in his brief under ten propositions. His first proposition questions the jurisdiction of the city of Pawhuska and its board of commissioners to proceed with the paving at the time the contract was let on October 27, 1921, his two contentions being that there was no jurisdictional resolution of necessity in force at that time, but if there was, then the contract was not let on the basis of the preliminary specifications and estimates of the city engineer.

It is conceded that whatever was done to acquire jurisdiction of the paving project was attempted to be done under the provisions of Comp. Stat. 1921, secs. 4590 and 4591. It is also conceded, or at least not questioned, that the preliminary or necessity resolution of January 19, 1920, together with the specifications and estimates of the city engineer adopted at that time, were sufficient to confer jurisdiction on the city and its board of commissioners if the proceedings had thereafter been prosecuted without unnecessary delay. No protest of any kind was filed against the resolution of January 19 within 15 days from the date of its last publication, as authorized by section 4591, supra. Thereafter, on May 6, 1920, the city commissioners proceeded to exercise the jurisdiction thus acquired by adopting a resolution determining to proceed. This resolution was in full conformity with the provisions of Comp. Stat. 1921, section 4597.

It is upon matters arising after the adoption of this resolution that plaintiff relies to establish his contention that no resolution of necessity was in existence to give jurisdictional support to the proceedings of the city commissioners in 1921 and 1922.

Before the day arrived for opening bids under the resolution of May 6, 1920, all proceedings were halted by an injunction suit, and this, with other actions, held all proceedings in abeyance until some time subsequent to February 17, 1921. This delay is relied on as one of the facts to establish abandonment by the city of its acquired jurisdiction. It is not considered, however, either on reason or authority, that delay in the proceedings occasioned by adverse litigation can ripen into abandonment of acquired jurisdiction during the pendency of such litigation. If such were the law jurisdiction by the city could be ousted in any case by the collusive action of minority property owners in filing and prosecuting successive actions.

Another fact relied on to establish abandonment is the resolution adopted by the city Commissioners February 17, 1921. This resolution recites the adoption of the resolution of May 6, 1920, determining to pave certain districts with a certain described paving material, and the adoption of the resolution of May 26, 1920, determining to pave certain other districts with a certain described paving material, and then continues thus:

"Whereas, the said resolutions so passed do not meet with the approval of the citizens of said city, with reference to the kind of paving material designated therein; and,

"Whereas, at a mass meeting of the citizens, held at the Commercial Club rooms on the 15th day of February, 1921, a resolution was passed requesting the board of city commissioners to rescind the above resolutions; and,

"Whereas, it is the desire of the city commissioners to comply with the wishes of the citizens of said city; now, therefore,

"Be it resolved by the board of commissioners of the city of Pawhuska, Okla., that all of said resolutions, above described, be, and they are hereby, rescinded, revoked and annulled and declared to be of no further force or effect."

There is no language here which, by the most strained construction, can be held to contemplate the abandonment of the paving program. On the contrary, the language is apt to exclude such an inference. The jurisdictional resolution of necessity of January 19, 1920, is not mentioned and the maxim, expressio unius est exclusio alterius, seems peculiarly applicable to this action of the city commissioners. It is expressly stated that it is the desire of the city commissioners "to comply with the wishes of the citizens." "with reference to the kind of paving material designated." This evinces an intention to pave rather than an intention to abandon.

Significance is added to the language of this resolution by evidence disclosed in the record of facts and circumstances leading up to and attending its adoption. Two city campaigns were in progress. One was to amend the city charter, which was done April 6, and the other was to elect officers, which was done April 15. In conjunction with these two campaigns mass meetings were being held in an effort to get the pending litigation, which had tied up the paving, settled, and to reach an agreement on the kind of material to be used for paving. The record appears to be uniformly harmonious to the effect that all factions desired the paving to be constructed, the parting of the ways being reached only when the character of material to be used was under discussion. Pursuant to such a mass meeting held February 15, the resolution of February 17 was adopted. Thereafter the pending suits were dismissed, the amended charter became operative, and the new city commissioners entered upon the discharge of their duties April 30, 1921.

It seems clear, therefore, that the city commisssioners had jurisdiction to proceed, which the new city commissioners did on the day they were sworn into office by asking for the resignation of the city engineer, a nonsalaried officer. Thereafter, on July 11, they entered into a contract with H.G. Olmstead Company to act as engineers for the city, and on October 10th adopted resolution No. 708, which was a determining resolution conforming in all respects to the provisions of Comp. Stat. 1921, section 4597. The time from the dismissal of the injunction suits in the spring of 1921 until the adoption of the determining resolution of October 10th cannot be held to constitute an unreasonable delay under the circumstances shown. No provision of law at that time required the determining resolution to follow the resolution of necessity within any fixed period of time, and absence of such requirement a reasonable time is always implied. Heman v. Gilliam (Mo.) 71 S.W. 163; Jaicks v. Middlesex Inv. Co. (Mo.) 98 S.W. 760; Barber Asphalt Paving Co. v. Kansas City H. P. Brick Co. (Mo.) 156 S.W. 749.

Plaintiff's second contention under his first proposition is that the specifications and estimates approved January 19, 1920, were changed by the final specifications and estimates adopted in resolution No. 708, and that therefore jurisdiction under the original resolution of necessity was lost.

The "specifications and estimates" required by Comp. Stat. 1921, section 4590, are by section 4597 referred to and denominated as "preliminary specifications and estimates." That this denomination is accurate and designedly used is shown by the fact that it is only in the determining resolution, after jurisdiction has been acquired, that the city is authorized to act in "defining the extent, character and width of the improvement, stating the material to be used, the manner of construction and such other matters as shall be necessary to instruct the engineer in the performance of his duties in preparing for such improvement the necessary plans, plats, profiles, specifications and estimates," etc.

If plaintiff's contention is correct that the "preliminary specifications and estimates" are binding then the Legislature stultified itself by enacting section 4597. If the city is bound by the details of the "preliminary specifications and estimates" it is futile and ineffectual to say that it shall thereafter define "the extent, character and width of the improvement," state "the material to be used, the manner of construction." etc.

In the instant case it is not contended that the contract was in excess of the estimate of the engineer approved by the resolution of October 10, 1921. As a matter of fact it was less than that estimate, and that estimate was less than the preliminary estimate. The real complaint is that the width of the paving is less than that contemplated by the preliminary, estimate, thus resulting in a demonstrable increase in some of the unit bases of cost over those of the preliminary estimate. The right to determine the width of the paving, the material to be used, and the manner of construction is vested exclusively in the city and its board of commissioners after jurisdiction is acquired, these details to be worked out to conform "as nearly as practicable" to the preliminary estimate. (Comp. Stat. 1921, section 4597.)

As was said by Justice Hardy in the case of Pitser v. City of Pawnee, 47 Okla. (sp. cit.) 562. 149 P. 202:

"In the case at bar the defendants had proceeded only to the point where they were about to publish the original resolution declaring that a necessity existed for such work, so as to enable the property owners to appear before the council and present objections to the making of same, when this suit was brought. The estimates and specifications furnished by the engineer were not the final plans and estimates, and the approval thereof did not bind the defendants to adhere strictly to them, as final plans and estimates are required to be furnished after opportunity for objections by the property owners and after the council have determined to proceed with the work, neither of which had been, or could have been, done at the time the suit was begun. The city might abandon the steps taken and not make the improvements at all, and this it might do at any time prior to making the contract."

Justice McNeill, in the case of Newman v. City of Okmulgee et al., 84 (sp. ct.) 148, 202 P. 1006, after quoting the above paragraph from the Pitser Case, said:

"It will appear from a reading of the case and from the statute that in adopting the final plans and specifications it is not necessary to adhere strictly to the preliminary plans and specifications, but they should be adhered to as nearly as practicable."

It is therefore concluded as to the first proposition that the city of Pawhuska and the city commissioners, under the facts shown in this record, never rescinded the jurisdictional resolution of necessity, nor was there an abandonment of the acquired jurisdiction by unreasonable delay. It is further concluded that the contract price was not in excess of the "aggregate estimate of cost submitted by the engineer with the plans and specifications." but was in conformity with the requirements of Comp. Stat. 1921, section 4600.

Plaintiff's second proposition reads:

"The property owners petitioned for a different kind of paving than they received and cannot be compelled to accept or pay for it."

Jurisdiction having been acquired to proceed with the paving program, the details of construction were legislative and administrative matters to be determined by the city through its board of commissioners. An error of judgment in the exercise of these functions might constitute such irregularity as to authorize correction by the courts in an appropriate action timely brought for that purpose, but it is an irregularity merely, and does not affect the jurisdiction so as to inhere in the subsequent proceedings and vitiate the final assessing ordinance. Estoppel operates against such contention after the work is suffered to be completed without legal action. Kerker v. Bacher, 20 Okla. 729, 95 P. 981; City of Muskogee v. Rambo, 40 Okla. 672, 138 P. 567; City of Coalgate et al. v. Gentilini, 51 Okla. 552, 152 P. 95; Wey v. City of Hobart et al., 66 Okla. 175, 168 P. 433; Pryor v. Western Paving Co. et al., 74 Okla. 308, 184 P. 88. Neither of these cases involved the application of the 60-day limitation prescribed by Comp. Stat. 1921, section 4619, each of the actions having been commenced within the 60-day period, just as in the instant case.

The third proposition relied on is that a portion of the assessment levied is for a storm sewer to drain off the surface water in this district, and that such assessment is void. A careful examination of the record in this case discloses no substantial difference in its facts from those considered by this court in the case of City of Sand Springs v. Hohl,90 Okla. 124, 216 P. 138. In that case, as in the instant case, the storm sewer was designed to take care of surface water coming from outside the district, by reason of the natural drainage, into the district. The size of the sewer required for this purpose was a matter for determination by the city commissioners, and if an error of judgment resulted in larger drainage facilities than were necessary this fact cannot vitiate the final assessing ordinance, jurisdiction to determine that fact existing.

Plaintiff's fourth proposition questions the legality of the engineer's fees charged in the assessing ordinance, and reliance is placed on the authority of City of Tulsa et al. v. Weston et al., (not officially reported) 216 P. 98, and he quotes the third paragraph of the syllabus. That opinion was withdrawn by this court and the law of that case is now as stated in City of Tulsa et al. v. Weston et al., 102 Okla. 222,229 P. 108. Upon the authority of this later opinion, and the rule laid down by this court in Arnold et al. v. City of Tulsa et al., 38 Okla. 129, 132 P. 669, this contention of plaintiff must be held untenable.

Under his fifth proposition plaintiff urges error of the trial court in refusing to reduce the assessment 10 or 15 per cent., claimed to be the amount added to the preliminary estimate to cover anticipated depreciation in the value of the bonds, and in refusing to hold that this addition to the preliminary estimate vitiated the entire proceeding. Reliance is placed upon the case of City of Pauls Valley v. Carter, 22 App. Ct. Rep. 155. This opinion, like the first opinion in the "Weston Case, has been withdrawn by this court and the law of that case is now stated in City of Pauls Valley v. Carter,101 Okla. 205, 224 P. 528. It is not shown by the record in the instant case that any sum whatever was added to the final estimate of cost, approved October 10, 1921, and on which the contract was based, to cover depreciation of the bonds. Upon the authority of the later opinion in the Pauls Valley Case these contentions of plaintiff must be overruled.

Plaintiff next contends that the trial court erred in holding that fraud vitiating the contract had not been established. Fraud, being always a question of fact, the finding of the trial court on this question, this being a proceeding in equity, is conclusive in this court unless contrary to the clear weight of the evidence. The testimony in the record on this question, covering some 60 pages, has been carefully read and considered. If this were a law action the testimony relied on would be wholly insufficient to establish the allegation of fraud. This being an equitable action it is only necessary to establish facts from which fraud may be fairly inferred. The trial court found that such facts had not been established, and it cannot be said as a matter of law that such finding is clearly against the weight of the evidence.

Plaintiff's seventh proposition complains of rulings of the trial court in the admission and exclusion of testimony, to which exceptions were duly reserved. Plaintiff does not favor this court by quoting or citing the testimony claimed to have been erroneously admitted. The testimony quoted, which is claimed to have been erroneously excluded, is not considered by this court to have been competent for the purpose for which it was offered.

Plaintiff's eighth proposition urges error of the trial court in its finding of fact, and alleges same to be contrary to the evidence. This contention has been sufficiently covered by the discussion herein under the first and sixth propositions.

The ninth proposition presents alleged error of the trial court in concluding as a matter of law that plaintiff is estopped by his quiesence from maintaining this action for mere irregularities in the proceeding and in the construction work. This proposition has been fully covered by the discussion under the second proposition, and plaintiff's contention must be overruled under the authority of Kerker v. Bocher, supra, and other cases there cited.

It follows from what has been said that plaintiffs' tenth and last proposition, that the trial court erred in overruling motion for new trial, cannot be sustained.

It is therefore concluded upon the whole case that the findings and conclusions of the trial court are correct, and its judgment should be affirmed.

By the Court: It is so ordered.

Note. — See under (1, 2) 28 Cyc. p. 1011 (1296 Anno.); (3) 28 Cyc. p. 1013, (1296 Anno); (4) 28 Cyc. p. 1173.