McAllister v. City of Tacoma , 9 Wash. 272 ( 1894 )

The opinion of the court was delivered by

Stiles, J.

— This case is like Buckley v. Tacoma (No. 1233), and Wingate v. Tacoma (No. 1234), ante p. 253, in some of the principal features, enough, perhaps to decide it. There was a petition to improve Tacoma avenue between North 4th and North 5th streets, by paving the roadway 54 feet wide, with bituminous rock upon a six-inch concrete foundation. The resolution of intention contained this specification: “Said improvement to consist of paving the roadway 54 feet wide with bituminous rock upon a six-inch concrete foundation.” The notice contained a copy of the resolution, with the usual variations, but it only mentioned the paving 54 feet wide; the estimate was declared to be §55,800. The engineer, however, included in his estimate 640 lineal feet of eight-foot walk (kind not mentioned) and 667 lineal feet of concrete curb, in addition to the paving. Minute specifications were prepared by the engineer, which covered these two items and some others not provided for in the resolution, and bids for the work were advertised for according to the plans and specifications on file. The board also made it a condition of bids that a bond be given guaranteeing the pavement for five years. The successful bidder entered into a contract to do the work according to the drawings and specifications for §55,-795, and an assessment was levied to pay that amount.

Two objections are made in this case that do not apply to the others noted above — (1) that the board of public works had no authority to go beyond the resolution of the council which declared it to be the intention to pave the street; and (2), that it had no authority to exact a bond guaranteeing the pavement for five years.

The first proposition appears too clear for argument, and the case illustrates the view taken in the former cases, that the resolution should describe the work to be done. The board of public works has no independent originating power in the matter of street improvements, whatever may be its functions in other departments, for the charter makes it simply the executive hand of the council in all such work. Inasmuch as petititions for improvements come first into its possession and are to be recommended pro or con by it, it may well be that it should in every case recommend in what way an improvement should be made, if made at all, but beyond that it cannot go, and it must take the order passed by the council and carry it out without substantial changes or additions. If, in the case before us, it could take an order to pave, and add curbing and sidewalks, in another case it can take one for sidewalking and add paving. The only answer made to this point is that it does not appear affirmatively that the appellants were charged with the cost of the curb and sidewalks. Let us see. The estimate included both items, and the specifications covered them minutely. The advertisement called for bids according to the specifications, and the contract was made in exact compliance with them. What room for doubt can there be that the expense of curbs and sidewalks was included in the contract price of §5,795 ? And when we find that there were 24 lots of 25 feet frontage each, and that each lot was assessed §241.67, or §5,800.08 in all, the demonstration that everything called for in the specifications is assessed is to complete for cavil. As to the effect of such excess contracting in rendering an assessment void, see Partridge v. Lucas, 99 Cal. 519 (33 Pac. 1082).

The second proposition is a twin brother of the first. There is nothing in the charter on the subject of repairs to streets, and the presumption is that ordinary repairs will be taken care of by the city. But the action of the board of public works had the effect of making the abutting property owners pay for all repairs, and not only that, but pay for them five years in advance. No such thing was contemplated in the resolution, the parties interested had no notice that any such thing would be done, and the board had no jurisdiction whatever to make a tender for the work depend upon such a condition. Brown v. Jenks, 98 Cal. 10 (32 Pac. 701); Excelsior Paving Co. v. Leach, 34 Pac. (Cal.) 116.

Judgment reversed, and cause remanded with instructions to grant the relief prayed for in the complaint.

Dunbar, C. J., and Anders and Scott, JJ., concur.