
    [No. 1180.
    Decided June 27, 1894.]
    J. D. McAllister et al., Appellants, v. The City of Tacoma et al., Respondents.
    
    MUNICIPAL CORPORATIONS — STREET IMPROVEMENTS — STRICT PERFORMANCE OF CHARTER PROVISIONS.
    Where a street improvement ordered by a city council upon petition merely called for the paving of a 54-foot roadway with bituminous rock upon a six-inch concrete foundation, the assessment therefor against abutting property will be set aside, when the board of public works has caused to be included in the improvement sidewalks and curbing, the cost of which has been included in the assessment.
    The board of public works of the city of Tacoma has no authority when awarding a contract for the pavement of a street, to exact a bond guaranteeing the pavement for five years.
    
      Appeal from Superior Court, Pierce County.
    
    
      Doolittle & Fogg (Charles O. Bates, of counsel), for appellants.
    
      F. H. Murray, S. A. Crandall, and James Wickersham (Alfred E. Buell, of counsel), for respondents.
   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.

ON PETITION POR RE-HEARING.

Stiles, J.

— A very earnest petition for a re-hearing has been filed in this case, with a view to obviating what was said in the opinion concerning the power of the board of public works to contract for repairs in addition to the contract for the improvement. Two cases are cited from New York, one of which, People v. Maher, 9 N. Y. Supp. 94, seems to sustain the view taken by this court. The other, Schenectady v. Trustees of Union College, 21 N. Y. Supp. 147, it is claimed states a case like the one at bar and holds to the contrary. The contract in that case was, that the work should be done in such a manner that no repairs would be needed for five years, and that if any should be required the contractor would make them. This was held to be a mere guaranty of the quality of the work, and therefore not within People v. Maher, where the contract was precisely like the one before us. Both of these cases were decided in the third department of the supreme court of New York, but by different judges, and the latter does not undertake to deny the authority of the former. The principle adopted by us was right, and we adhere to it. The anxiety of counsel in this matter seems to be directed to a large body of warrants which have been issued in payment of other like improvements in the city of Tacoma, where the contracts were made by the board in the same way, but where assessments are not due; but it is evident that the provisions of the act of March 9, 1893, Laws, p. 226, on the subject of reassessments, have been overlooked, and that the anticipated danger is more fancied than real. Certainly, if that act can have any force, the actual value of any improvement made, where there was jurisdiction to make it at the expense of abutting property, can be reassessed.

Petition denied.

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