The opinion
MILLER, J.
(dissenting). I dissent from the opinion of the majority of the court. The findings of fact made by the trial judge clearly show that the trial court was not satisfied with the judgment rendered. After-stating that he had carefully considered the evidence and at the request of the parties: had made a personal examination of the paving, he makes this statement:
“I think I have got a pretty good idea as to the condition that exists there. If the legal questions that are involved here were out of -the way to the court’s satisfaction, r wouldn’t have any hestitaney in announcing my position, one that has been reached after, I think, very careful consideration as to the character of the pavement that is in this addition, and of the manner of its construction and of its'present value. If it was up to me to decide these, questions, instead of having-been up to the commissioners in the first place, I would announce- a decision that would meet my approval most heartily.”
The findings of fact of the trial court further' disclose that defendant, paving company, claimed they. had a certain formula, which was being used elsewhere, that would' make a good substantial paving and be much cheaper. They took one of the city commissioners and ;one of the property owners to-Independence; Mo., and there exhibited to them some of this proposed paving.
Most of the commissioners were opposed to-this kind of paving, so was the city engineer. They contracted for it on the urgent solicitation of the property owners, but they were so. doubtful about it they required a 100 per cent, maintenance bond. Dr. Enochs,
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one of the principal property owners in the paving district, watched the paving construction carefully. On about the second day he made complaint that it was not being done properly. This complaint was made 'to the foreman in charge of the paving, also to Mr. Welty, the president of the paving company, then to Mr. Burke, who had -at one time been city engineer of Oklahoma Oity, but who at that time was interested in the paving company. He told them that the paving was not being put down right, that something was wrong. Each assured him that it was all right. He then went to the city engineer about it. The city engineer advised him that it was the intention of that department to inspect this work, for a maintenance bond of 100 per cent, had been' made for the protection of the city and property owners. After further demands, the assistant city engineer told Dr. Enochs that they would not put an inspector on the work.
We again quote from the court’s findings:
“Some of the first work that was put in was'taken up because it was apparently defective, and taken up at the start, and delayed the work for a day or two, perhaps. Then the sefcond coat was put on, almost, all of it, — I have forgotten what portion of the pavement was not finished at the time they discovered this faulty condition. The condition there was .horrible, as everybody admits, and the company threw up its hands. Then the new president of the company came on and took charge of the matter and with his attorney went to see Doctor Enochs, to see what could be done. * * *”
The court then finds that the. new president told Dr. Enochs that they wanted :to do what was right and put down a good pavement .and wanted ithe assurance |of Dr. Enochs that he would be satisfied If they did that. He assured them that all he wanted was a good pavement. They put down a third layer on part oij it, and tried to fix it so it would be a good pavement. But the court finds, after a rain the surface was slimy to the extent it disclosed a 'horrible condition. It cheeked and cracked, the cracks running in all directions. At the time it was inspected by the trial judge, he observed one place 25 feet in length by three or four feet in width, where the paving was worn out, or at least had disappeared. He found that where these cracks occurred he could put his knife blade in the crack and and just lift out chunks of the paving that were loose. He specifically states: “I would not want that pavement put on the street between the house where I live and where Mr. Haul lives; 'if it were put down there without cost, I would say keep it away.”
The trial court then concludes as follows:
“But now, I am going back to the other question, as to whether this" court has
got
any authority. Our law provide's that cer-' tain tribunals shall have the control of certain matters. They are delegated with certain authority. The courts say that if their acts are all subject to review by the court that it is extending the power of the court far beyond what anybody supposed. Fraud, of course, vitiates everything, and if an officer or tribunal is influenced by ulterior-motives, that if fraud enters into their acts,; their acts can be reviewed, and the remedy is afforded against it. The question is as to whether this case presents a condition where the court would be justified in saying that the acts of the commissioners in approving this work, notwithstanding the individual members of the commission, I think without exception, believed what some of them termed a rotten piece of work, in other words, a rotten pavement, as to whether this court can say that their decision is subject to review here. Where there was a disputed question of fact, relative to the construction of the pavement, relative to the compliance., or noncomplianee with specifications, and a' hearing is had and the commissioners say:
‘We believed all the time that it was a physical impossibility to get a good pavement on that formula, but you insisted that it must be put down in the face of our individual beliefs that you would regret it and that it would not be a good work, wo believe from the investigation that we have made, and we have been out there to look .at it, and we see here, and there are cracks. in here, we will say, I don’t know whether there were or not when they were out there — ‘but that’s a very common occurrence in driving over town, to see these bad places on any other kind of pavement, and there isn’t anything in the specifications that says that cra'eks shall not appear except that its to bé a compact mass; you have got a remedy if that isn’t a good pavement; upon judicial inquiry, it should be ascertained that-.the specifications had not been followed, -and the only way on earth that we can tell now whether they have been followed, is by inspection of it, by looking at it, by inquiring about what has been done, by having our chemist investigate to see whether sufficient asphal-tum is in there,and from this inquiry we have reached the conclusion that the specifications have been complied with substantially ; of course you have got a poor pavement in some portions, than you ¡had before, but that was the result of your own agreement that that sio-rt of thing might be put down; if it would get a good pavement there, why that’s all right and that was done; now we have reached the conclusion that you have got just as good pavement there as you could get from those specifications. It may be that if we had had an inspector out there with our chemist, examining each load of material .as it w-as dumped, we might have ascertained that the formula was not followed as it was intended, -but we
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didn’t do that just simply because it was a matter of judgment on our part as to whether we ought to go to that trouble. We have got a bond here that will protect you, but we think they have complied with their contract and we are going to approve it.’ Now, that’s the situation that occurs to me.
“Take this evidence, these experts: take Doctor DeBarr’s testimony, take the samples that have been produced here, — I don’t think the dust that was produced here by Doctor DeBarr, after his Chemical analysis, is of that dust-like fineness that the Kansas City or that the known sample produced; I don’t think they had as good dust as they got at Kansas City, because if you take it up between your thumb and finger it’s gritty and while it looks fine, the grit is there that is absent from the other sample, but that was not known at the time this work was approved. An investigation was made,--I Believe that the commissioners honestly believed that they had got just as good a job there as they could get from that formula, but I don’t believe they have got as good a job as they would have if they had had an inspector out there, with a chemist to examine it. I- can’t reach any other conclusion. I can’t believe that that pavement is such a pavement as anybody had the right to expect there, and as the paving company expected it would be. There isn’t any doubt .that, I think everybody has been honest in this entire matter from start to finish, but it’s just a condition that is presented here which it looks to me as though the court’s hands are tied. I regret it very much. I wish it was before me now in the first place, I would knock that pavement out, in less time than it takes for me to tell about it, as under the evidence introduced upon this trial the court finds that said pavement was not constructed in accordance with the plans and specifications.”
The city commissioners admitted it was a bad job, but said it was as good a job of paving as you could expect to get from that formula. That is not conclusive on the trial court. The question is not what kind of a job a particular formula will produce, but was this a substantial job of paving? The property owners are not skilled in that particular branch of the science of chemistry, so that they could determine what kind of a paving a certain formula would produce. When the paving company failed to produce a reasonably good, substantial pavement, either because the formula was faulty or because they failed to follow ft, there was a failure of consideration. The acceptance by the commissioners amounted to constructive fraud on the property owners, and I do not agree that the court’s hands were tied by the action of the commissioners.
The court states in his conclusion that it is not as good a job as would have been obtained if the city commissioners had sent someone to inspect the work as it progressed. We again refer to the last part of the court’s conclusions above quoted:
“I wish it was before me now in the first place; I would knock that pavement out, in less time than it takes for me to tell about it, as under the .evidence introduced upon this trial the court finds that said pavement was not constructed in accordance with the plans and specifications.”
This shows conclusively that it was not as good a job as could have been obtained from that formula.
The property owners, acting through Dr. Enochs, did everything in their power to get a good pavement or have the work stopped. The paving company and the city commissioners disregarded the property owners’ appeal to have the paving inspected as it was being put down. The commissioners blinded their eyes to the condition of the paving, and in .effect said: “You wanted paving under this formula; now pay for it.”
The cities and towns of Oklahoma, and especially the taxpayers, have been abundantly cursed with inferior paving, handed them by the paving companies and accepted by the city officials. Most of the paving is in bad condition and in need of repair long before the expiration of the ten-year period allowed property owners to pay for the same. In some instances the repair work begins almost simultaneously with the signing of the paving bonds by the city officials. Here the paving was absolutely worthless, and so shown to be even before the bonds were signed. The acceptance of it by the city commissioners was an arbitrary act on their part. The property owners were entitled to their deliberate and unbiased judgment. Their arbitrary ruling does not tie the hands of the court. There should be no wrong without a remedy, but in permitting the arbitrary ruling of the city commissioners to stand it constitutes a wrong for which the courts have denied a remedy. I think the judgment of the trial court Should be reversed.