Red Wing Sewer Pipe Co. v. City of Pierre ( 1918 )

WHITING, P. J.

This cause has been tried in circuit court. An appeal was taken from' the judgment rendered upon the first trial. Our opinion upon such appeal i-s reported in Red Wing Sewer Pipe Co. v. City of Pierre, 36 S. D. 276, 154 N. W. 712. An examination of such opinion will disclose the nature of the action, the issues then presented, and the questions disposed of by this court. Upon, the first trial the “trial court found that the work under the sewerage contract was accepted on December 23, 1912; and, inasmuch as it was undisputed that the action was not commenced until March 18, 1913, such court held that under the provisions of section 717, C. C. P., plaintiff’s lien, upon which, his right of action was based, ceased to' have •any validity prior to the commencement of the action. -This court held that the evidence was insufficient to support the trial ■court’s finding that there was an acceptance on December 23, 1912. After the decision of this court defendant bank amended its answer and alleged that the work under the sewerage contract was accepted December 30, 1912. Upon the second trial the court entered its finding's of fact from which it concluded that plaintiff's lien was valid, and that it was entitled to judgment. This appeal is taken from -the judgment entered in conformity with such conclusions. The sufficiency of the evidence to support the findings is 'unquestioned; the sole question before us being the sufficiency of the findings 'to 'Support the con'clusions of law and judgment.

The trial court found fact's from which it clearly appears that the work was accepted on December 30, 1912, if' the city was in a position, on that date, to accept same. But the court also found that prior to such attempt at acceptance the city had not given the notice required .by section 18, c. 213, Laws 1903, and concluded that such attempted acceptance did no't set running the 30-day period -of time which, under section 717, C. C. P., would render plaintiff’s lien invalid, suit thereon -not being' commenced within such period.

Respondent contends that this court by its former opinion, has foreclosed all question as to an acceptance on December 30, 1912. As before noted, the question before us was the sufficiency of the evidence to support the finding of an acceptance on December 23, 1912. We in no manner considered, because it was not before us upon such appeal, whether there 'was an acceptance ‘on December 30, 1912. The question, under the issues as now framed is whether there was a valid acceptance on December 30, 1912. This court did not, b}- its former decision, foreclose the right of appellant to amend its pleading and, upon such amended pleading to prove an acceptance on some date other than December 23, 1912.

Was it necessary, before the city Could accept the work that had been dene under the sewerag'e contract, to> give the notice provided by section 18. c. 213, Laws 1903? It is the contention of appellant that 'the city was acting under the previsions of article 19, c. 14, P. C.: that, when a city, in the establishment of a sewerage system acts under that law said, section 18 has no application; and that under those circumstances the city may accept the work without giving any notice of such contemplated acceptance.

[1] We are of the opinion that there are at least two complete and in the main, separate methods provided by statute for establishing and maintaining systems of sewage -in the cities of this state. No useful purp'ose could be subserved by quoting the provisions of the various statutes that have been enacted from time to time, and we shall content ourselves with a brief statement of the distinguishing requirements of each method and a reference to* the particular law prescribing each of such requirements. Parenthetically we would say that we do not believe that the provisions of chapter no, Laws 1909, and chapter 228, Laws 1911, need any further consideration than to- call 'attention to ■the fact that there are none of them which require any notice of time and place for considering acceptance of work. The first method is. that prescribed by article 19 c. 14, P. C., as amended by chapter 153 and chapter 155, Laws 1905, as such laws may be affected by any inconsistent provisions in said chapter no, Laws 1909, and chapter 228, Laws 1911. Under this method the oity enters into a contract for the putting in of the system after receiving- bid's upon ;a basis of cash pajuntenh The city .can, ini its discretion, as tíre work progresses, grant to the contractor partial payment's for work done. Bonds are issued to raise the money to install the system, and such, bond's are paid, b]^ money raised through special assessments levied upon the property benefited 'by the improvements, such assessments 'being divided into annual installments. The second method is that prescribed by chapter 213, Laws 1903, as such act may be affected by any inconsistent provisions in said chapter no, Laws 1909, and chapter 228, Laws 19-11. This method does not contemplate the issuance of bonds. Tlrle funds to cavar the cioslfc olf the sjnstem are to be .raised by means of assessments against property benefited, such assessments! to be evidenced by .assessment certificates, and such assessments pajable entirely different from the assessments made under the first method. Under section 18, c. 213, published' notice to> “property owners interested in said improvement, and upon whose land assessment therefor has be'en made,” must be given- before the city can finally accept the work done under a contract. The third method', if in fact there are more than two workable methods authorized, provides, as under the first method, for the issuance of 'bonds, such bonds, however, not to he payablel -by levies solely-upon the property benefited but by levies upon all the'“taxable -property of the city.” Section 4, c. 155, Laws 1905. Under neither this ñor The' first method need any notice '‘such as provided by section 18, c. 213, be given. We have not attempted to give all the provisions of law' pertaining to each of. these methods, but only those material to.the question before us.

[2] While the findings in this case are not.as complete as might he-’ desired, there is" enough' therein to show that the city was proceeding under the first method. Prior to instituting the proceedings looking to the construction of -the sew.erage system, the city, by the • issuance and sale of bonds, raised the. money to pay for such contemplated work. - The contract, dated -September 30, 1912, was a cash contract. Partial payments were made before’ the completion of the work under estimates made in October and November, 1912. It further .appears that.the city was of the opinion that it was proceeding, under the first methpcl, because, when 'it came to make its assessments for the purpose of 'providing the funds to pay its bonds, it levied the same strictly under chapter 153, Laws-.,1903, and its resolution making such assessment recited that “such, assessment was made under the provisions of chapter 153, Laws 1903.”

[3] We find it unnecessary to express, and therefore refrain from, expressing, any views upon the question of- whether any one except the property owners — to whom section 18, supra, prescribes that.the notice provided thereby shall be given; — can complain of the failure to give such notice. Su-oh notice was unnecessary, and the work was accepted December 30, 1912. It follows that respondents lien ceased to be valid before this action was brought.

The judgment appealed from is reversed, and the trial court is ordered to enter conclusions and judgment in Conformity with the views-herein expressed. .