"Contractors will furnish specifications for [ warrants, all of which have been paid except hard-surface paving only, and at a cost not to three, totalling $8,091.14. exceed $1.25 per square yard." It appears from the findings that at the time specified in the last notice there were several bids for improving the street; one for Roxol bituminous pavement on a macadam base, at $1.20 per square yard; another for concrete pavement at $1.25 per square yard; and the plaintiff itself submitted three bids: (1) For bituminous pavement on a macadam base at $1.10 per square yard; (2) for El Oso asphaltic concrete pavement on crushed rock base at $1.18 per square yard; and (3) El Oso asphaltic concrete pavement on cement concrete base at $1.25 per square yard. Each of the bids of the plaintiff was less than the proposals of the other two parties as computed on the total pavement. Based solely on the proceedings heretofore mentioned, the council entered into a contract with the plaintiff on July 18, 1913, to pave the street in accordance with its proposal attached to and made part of the contract. Various terms and conditions regarding the prosecution of the work were included in the contract. Section 24 of that agreement is in these terms: "That the payment by the party of the first part for the performance of this contract shall be made from a special fund created for that purpose pursuant to terms and provisions of the charter of said town pertaining to the construction of street improvements and for the assessment of the cost thereof against the real property benefited and for the collection of said fund, but that the party of the first part shall not nor shall any of the officers be required to pay any of said sums from any other fund than the special fund so raised for such improvement, except in the event that if for any reason said party of the first part shall fail, neglect or refuse to make or levy a valid assessment against said real property, or any part thereof, abutting upon the part of said street to be so improved or benefited by said improvement." The findings recite that after the execution of the contract, as the plaintiff proceeded with the work, and from time to time, changes were made in the paving, under the direction of the city engineer, the principal ones of which were substituting pavement for macadam where the plans and specifications called for the latter surface. On May 28, 1914, the council passed Ordinance No. 111, declaring the total cost of the improvement to be $47,560.22, and an assessment was declared and levied for that amount. Certain defects in the assessment are pointed out by the findings, and it is said that the council has never passed any further ordinance or taken any further action to collect the assessment. The findings also state the aggregate amount of payments made to the plaintiff by the defendant and the issuance of certain [2] The crux of the contention is found in the clause of the notice inviting bids whereby the contractors were required to furnish their own specifications for hard-surface paving only, and at a cost not to exceed $1.25 per square yard. It may be conceded, without deciding, that the town had a right to make an improvement on any of its streets under its general power over such highways, and pay for the same out of the general fund, and that another form of power existed, based upon the petition of abutting property owners. It is clear that the proceedings in question here were taken under the second authority; that is, upon the petition of abutting property holders. That the contract was made with reference to this procedure is shown by section 24 thereof, already quoted. The plaintiff accepted the Bancroft Act bonds in part payment of the contract price, and these could be issued only on an improvement made at the expense of particular property. Section 3788, Or. L. The ordinance under which the contract was let prescribed that the payment should be derived only from assessments on the adjacent property. The proposal by the plaintiff, made part of the contract, recites that it is in pursuance of this Ordinance No. 87, so that it stands out in bold relief that the council was proceeding under the petition of the local abutters, and not in pursuance of its general authority over the streets, and that the plaintiff operated on the same basis. Having embarked upon this procedure under authority of its ordinance, the town could not ignore the same or depart from it, except by another ordinance. Hibbard v. Chicago, 173 Ill. 91, 50 N. E. 256, 40 L. R. A. 621. To the same effect is Pontiac v. Talbot Paving Co., 94 Fed. 65, 36 C. C. A. 88, 48 L. R. A. 326. As said by the Supreme Court of Washington in Stephens v. Spokane, 14 Wash. 298, 44 Pac. 541, 45 Pac. 31: "The city may have had the power to provide for the improvement at the expense either of its general fund or at the expense of a special fund to be created by assessment upon the property benefited, but it had no power to mix these two methods of procedure. When, as in this case, it sought to make the improvement at the expense of the property benefited, it must proceed as though it had no right to make it in any other way." See, also, Chicago v. Brede, 218 Ill. 528, 75 N. E. 1044; Rhode Island Mortgage & Trust Co. v. Spokane, 19 Wash. 616, 53 Pac. 1104; German-American Savings Bank v. Spokane, 17 Wash. 315, 49 Pac. 542, 38 L. R. A. 259. These precedents are cited to the point that when the city has embarked upon a particular scheme of betterment prescribed by its charter, it must adhere to that throughout, and cannot piece out its defects by ref (193 P.) erence to some other mode of improvement., vance are aptly stated in the note to the So we come to the conclusion that this action report in the publication last named, thus: is for a breach of contract said to be ground"There are many constitutional and statutory ed on a special system of street improve- provisions requiring the awarding of public conment, and that there is not involved any vio-tracts to the lowest bidder. In order to comlation of an agreement based upon the general authority of a city to improve streets, the expense of which was to be defrayed by general taxation. ply with such requirement, there must, so far as the subject-matter will allow, be an opportunity for competition on equal terms; and in order that all may be able to compete on equal [3] Having determined, then, the procedure terms, there must be established in advance a under which the parties were operating, it all may bid on the same thing. basis for an exact comparison of bids, so that remains to decide whether or not they com- it has been held that such provisions are not Accordingly, plied with it. According to the sections of complied with unless plans and specifications the charter set out in the findings, the coun- are prepared in advance sufficiently definite and cil acquires jurisdiction to make the improve-explicit to enable bidders to prepare their bids ment by giving notice of its intention and intelligently on a common basis." having disposed of remonstrances against the betterment in view. Its ordinance passed to carry into effect its intention "shall conform in all particulars to the plans and specifications previously adopted." nance becomes the law of the case, and it is erroneous to depart from it in subsequent stages of the proceeding. Again, in section 52 we find the mandatory language: This ordi "Such contract or contracts shall be let to the lowest responsible bidder for either the whole of said improvement or such part there of as will not materially conflict with the completion of the remainder thereof." A wealth of authority is there cited in support of the proposition. See, also, Mazet v. Pittsburgh, 137 Pa. 548, 20 Atl. 693; Anderson v. Fuller, 51 Fla. 380, 41 South, 684, 6 L. R. A. (N. S.) 1026, 120 Am. St. Rep. 170; 130 Pac. 771; Ricketson v. Milwaukee, 105 Missoula St. Ry. Co. v. Missoula, 47 Mont. 85, Wis. 591, 81 N. W. 864, 47 L. R. A. 685; Fones Hardware Co. v. Erb, 54 Ark. 645, 17 S. W. 7, 13 L. R. A. 353; Ertle v. Leary, 114 Cal. 238, 46 Pac. 1; Huntington County Packard v. Hayes, 94 Md. 233, 51 Atl. 32. v. Pashong, 41 Ind. App. 69, 83 N. E. 383; It is well settled, therefore, that a previously fixed standard, to which various proposals may be referred for comparison, is an essential ingredient, where the contract is to be let to the lowest bidder. What, then, is the effect of departing from this rule? In Terwilliger Land Co. v. Portland, 62 Or. 101, 123 Pac. 57, Mr. Justice Bean, delivering judgment, wrote thus: Under these provisions of its organic act, it was the imperative duty of the council previously to establish a standard of contract by which could be measured the question of who later was the lowest responsible bidder. In the case in hand a portion of the property holders in the municipality had voluntarily initiated a local proceeding for the improvement of the street. Moved by their "It is a well-settled general rule that all petition, the council entered upon the special contracts in which the public is interested, proceeding of improving the street at the ex-which tend to prevent the competition required pense of the abutting property. Its author- by statute, are void"-citing authorities. ity was thus limited, and any one dealing with the municipality is bound to take notice of the limitations upon its power and the mode of its exercise. In other words, it is a question of dealing with an agent whose authority is known to be special and limited. Something is said in the findings to the effect that some of the pavements mentioned in the proposals are patented processes or designated by trade-names, but the error is not necessarily affected by that feature. The vice of the proceeding would have been the same if no bidder had mentioned any copyrighted name or patented process of payment. The departure from the charter requirements was made when the city abandoned its already established plans and specifications, and required each bidder to furnish his own specifications. Hannan v. Board of Education, 25 Okl. 372, 107 Pac. 616, 30 L. R. A. (N. S.) 214, is a case in point, and the rule in cases where it is required that the contract shall be let to the lowest bidder and the necessity of prescribing a fixed standard in ad In that case the prevention of competition rested in the requirement of the city that a particular kind of pavement should be laid, the right to lay it being then the exclusive property of a certain concern which had not given permission on equal terms to other parties to use the process. The principle underlying the decision was that competition was in a degree stifled or impeded. This case has been distinguished, never overruled, but rather approved in principle by such authorities as Johns v. Pendleton, 66 Or. 182, 133 Pac. 817, 134 Pac. 312, 46 L. R. A. (N. S.) 990, Ann. Cas. 1915B, 454, where it appeared that the process of paving, although patented or copyrighted, was nevertheless placed at the disposal of all bidders on equal terms, thus giving each of them an even start in the contest. In the instant case, under the call for bids embodied in the second published notice, each would-be contractor pursued his own course without conflict with others. There was no competition. Although held proceedings must show jurisdiction. Used in a narrow and technical sense, the words "inferior courts" mean courts of a special and limited jurisdiction, which are created on such principles that their judgments taken ceedings must show their jurisdiction (citing alone are entirely disregarded, and the proWords and Phrases, "Inferior Courts"). 3. Certiorari 14-Writ of review lies from the computed prices differed in amount, yet 2. Courts 33-"Inferior courts" defined, and that is not the sole element of the contract. The nature and quality of the pavement to be laid vitally affect the question, giving sanction to the rule that the terms of the contract upon which bidding will be required must be specified with reasonable certainty in advance. The question of the sufficiency as to precision of the plans and specifications is not here involved. It is an instance of the total absence of authoritative plans and specifications. Neither is it of any avail, as expressed in the findings, that the pavement actually laid complied substantially with one class of specifications filed by the city engineer. The reason of this is that by requiring each bidder to furnish his own plans and specifications the originals were abandoned. And it may be that, if the call for bids had particularly specified the requirements, some other bidder than the plaintiff might have bid lower. Since competition was suppressed by the abandonment of the plans and specifications prescribed by the ordinance, and the city improperly delegated to the prospective bidders its imperative duty of prescribing a plan and specifications, the proceeding is void under the doctrine of Terwilliger Land Co. v. Portland, supra. Being thus void, the contract does not furnish any control over the actions of the parties the breach of which would result in damages. Hence we conclude that, whatever might inure to the plaintiff by future legislative or other action of Milwaukie, yet no recovery can be had for a breach of the so-called contract here involved. The judgment of the circuit court was not the legitimate conclusion from the findings of fact, and hence it must be reversed. 4. Courts 36-Holding that county court is "court of general and superior jurisdiction" means record imports verity. The holding that in probate matters the county court is a "court of general and superior jurisdiction" simply means that its record imports absolute verity, and cannot be collaterally attacked. 5. Judgment 518-Proceeding by writ of review is a direct attack on decree. A proceeding by writ of review is a direct, and not a collateral, attack upon the decree sought to be reviewed. In Banc. Appeal from Circuit Court, Wallowa County; J. W. Knowles, Judge. Proceeding for admeasurement of dower begun in the county court of Wallowa coun MCBRIDE, C. J., and HARRIS and JOHNS, ty, Edgar Marvin, County Judge, by Julia A. JJ., concur. (98 Or. 175) Estes, opposed by Mary Cole and others. The county court proceeded to hear the case and to admeasure dower, and opponents brought writ of review to the circuit court, COLE et al. v. MARVIN, County Judge, et al. and from an order dismissing the proceeding (Supreme Court of Oregon. Dec. 7, 1920.) 1. Dower 74-Statute, attempting to confer exclusive jurisdiction on county court for admeasurement of dower irrespective of dispute, ineffective. Despite Const. art. 7, § 12, as amended in 1910, giving the county court the jurisdiction pertaining to probate courts, Or. L. § 936, subd. 8, in so far as attempting to confer exclusive jurisdiction on the county court in all cases of admeasurement of dower, irrespective of any dispute as to the widow's right, is ineffective for such purpose, and a county court in which a widow sought admeasurement of her dower erred in proceeding with the admeasurement after it appeared from the answer of the heirs that a dispute existed as to her right, and that the answer presented a question of fact. the County Judge and Julia A. Estes appeal. Affirmed. This is an appeal from an order of the circuit court dismissing a proceeding for admeasurement of dower begun in the county court of Wallowa county by defendant Julia A. Estes. Mrs. Estes instituted a proceeding in the county court for the admeasurement of her dower in the land of her deceased husband. Among other matters, it was alleged, in conformity to section 10060, Or. L. (7293, L. O. L.), that the petitioner's right to dower is not disputed by the heirs or devisees, or any one claiming under them. Certain heirs of the deceased, plaintiffs in this court, appeared in the proceeding and answered, denying the claimant's right to dower, alleging that she had theretofore elected to receive (193 P.) certain provisions of the will of deceased in, intention of the framers of the Constitution lieu of dower, had so notified the executor, to vest in judges unlearned in the law, as and had accepted an installment of such pro- most of the county judges then were and vision. The county court proceeded to hear many now are, jurisdiction to decide compliand determine the case and to admeasure the cated disputes in relation to dower, which dower. From its decision the plaintiffs frequently involve many thousands of dollars, brought this writ. The sole contention here and especially in view of the fact that section is that by virtue of section 10060, supra, the 12 expressly limits the civil jurisdiction of county court had no jurisdiction to admeas- the county courts to matters "not exceeding ure dower where that right was disputed. the amount of value of five hundred dollars." Thomas M. Dill, of Enterprise (A. Fairchild, of Enterprise, on the brief), for appel lants. J. A. Burleigh, of Enterprise, for respond ents. MCBRIDE, C. J. (after stating the facts as above). [1] It hardly requires argument to sustain the proposition that if section 10060, supra, is still effective and unrepealed, the county court had no jurisdiction to decree the admeasurement of dower in the face of a dispute by the heirs as to the claimant's rights in the premises. This branch of the case depends upon the question of the repeal of that section. The law was originally enacted in 1854, and at the time our Constitution was adopted it was the only authority given to county courts to admeasure dower; disputed cases being left by implication to the equity courts. Under our original Constitution, the county court was recognized as a court of record, having general jurisdiction to be "defined, limited and regulated by law," and by section 12 of article 7 it was given, among other prerogatives, "the jurisdiction pertaining to probate courts." The changes that have been wrought by the amendment to article 7 adopted in 1910 need not be considered here. What is meant by "the jurisdiction pertaining to probate courts" is to be determined in a great measure by the authority exercised by such courts when the Constitution was adopted. At common law it became the duty of the heir immediately to assign or admeasure to the widow her dower in the lands of her deceased husband. If this was fairly done, the matter was ended. Scribner on Dower, c. 4, 1. If the heir refused or made an unfair assignment, her remedy was in the commonlaw courts by "writ of right of dower." Id., c. 5, §§ 1, 2. When there appeared some legal impediment to proceeding at law, the courts of equity assumed jurisdiction, and in most of the United States, where the right of assignment of dower was not provided for by statute, the usual remedy was in equity. It would appear that when the Constitution was adopted there was, if any, only a limited right in the probate courts to admeasure dower, namely, when there was no dispute with the heirs or others interested, and the constitutional authority of the county courts sitting in probate extended no further than to such While this limitation does not in terms or dicates the caution with which the framers meaning apply to probate proceedings, it inof the Constitution viewed any large grant of authority to a tribunal whose judge was usu ally some one unskilled in the law. Taken as a whole, we are of the opinion that the grant of Jurisdiction in probate matters did not extend that authority to disputed cases of dower, and did not authorize the Legislature so to extend it; such matters not being at the time of the adoption of the Constitution within the existing probate jurisdiction. In Stevens v. Myers, 62 Or. 372, 121 Pac. 434, 126 Pac. 29, at page 408 of the state report, we held that it was not the intent of the framers of the Constitution to include the probate of wills in the term "civil cases," and we are of the opinion that by section 12 of article 7, the framers thereof intended to confine the authority of the county courts in probate matters to those existing at common law, and perhaps such other matters as had at that time been grafted onto the probate system by statute. What is said in that opinion about the effect of section 936, L. O. L. (936, Or. L.), upon the pre-existing statutes must be considered with reference to the subjectmatter then under discussion, namely, thẻ probate of wills, in which the probate courts and county courts succeeding them have always had unlimited and exclusive original jurisdiction in the first instance; and this, as already shown, is not the case in the matter of admeasurement of dower. It would follow logically from this reasoning that subdivision 8 of section 936, Or. L., in so far as it attempts to confer exclusive jurisdiction upon the county court in all cases of admeasurement of dower, irrespective of any dispute as to rights, is ineffective for that purpose. And this court by another line of reasoning has practically arrived at that result. Baer v. Ballingall, 37 Or. 416, 61 Pac. This decision is followed in Browne v. Coleman, 62 Or. 454, 125 Pac. 278. 852. We are of the opinion that the county court erred in proceeding with the admeasurement after it appeared from the answer of the heirs that a dispute existed as to the right of Mrs. Estes to dower and the answer presented a question of fact to be tried, before a decision could be arrived at. The heirs presented the question in the only way that it could be raised. If they had failed to appear, it would have been taken pro confesso that It seems hardly probable that it was the the statement in the petition that there was cases. libel. no objection by them to the admeasurement, it had classed Smith as a thief would be was true, and they would have been barred strong enough to justify an action by him for from contesting the proceedings thereafter. Their answer, disputing the petitioner's right to dower, was in effect a self-proving plea to the jurisdiction, where it showed upon its face facts which, if established, would have defeated Mrs. Estes' claim to dower. [2] Another important question is as to the remedy in cases where the county court has exceeded its jurisdiction. It is claimed by the petitioner that the county court sitting in probate is a court of general and superior jurisdiction, deriving its authority from the Constitution, and that its decisions can be brought into this court by appeal only. The contention of appellant may be syllogistically stated about as follows: "(1) The county court sitting in probate is a court of general and superior jurisdiction. (2) A writ of review lies only to the proceedings of inferior courts; ergo, such writ does not lie to review the proceedings of the county court." The weakness of this syllogism lies in confusing the definition of the term "inferior" as applied to this subject-matter. Used in a narrow and technical sense, the words "inferior courts" mean courts of a special and limited jurisdiction, which are created on such principles that their judgments, taken alone, are entirely disregarded, and the proceedings must show their jurisdiction. Words and Phrases, title "Inferior Courts," citing Ex parte Cuddy, 131 U. S. 280, 9 Sup. Ct. 703, 33 L. Ed. 154; Nugent v. State, 18 Ala. 521; Grignon v. Astor, 2 How. (43 U. S.) 319, 11 L. Ed. 283, and other cases. But such is not the sense in which the word is used in our Constitution, where by necessary implication, if not by express language, the county court for the purpose of the exercise of the supervisory control granted to the circuit courts is relegated to the class of inferior courts. Section 9 of article 7 of our Constitution is as follows: The contention of the petitioner is fully answered and negatived by the decision of this court in Kirkwood v. Washington County, 32 Or. 568, 52 Pac. 568, in which Mr. Justice R. S. Bean, speaking for the court says: "In a technical sense, an inferior court is one of inferior or limited jurisdiction, whose judgment, standing alone, does not import verity; but, in a more general sense, any court from which an appeal or writ of review will lie is inferior to the court to which its judgments may be carried for review; and it is in this sense the term is evidently used in the statute. As so used, it refers to relative rank and authority, and not to inherent quality, and was intended to include all courts and tribunals over which the circuit courts are given appellate jurisdiction and supervisory control by the Constitution (article 7, section 9). Swift v.. Circuit Judges, 64 Mich. 479, 31 N. W. 434; State v. Daniels, 66 Mo. 192; Nugent v. State, 18 Ala. 521; 4 Enc. Pl. & Prac. 38. The motion to dismiss the writ for want of jurisdiction was therefore properly overruled, and this brings us to the validity of the proceeding sought to be reviewed." It is true that in Stadleman v. Miner, 83 Or. 349, 391, 392, 155 Pac. 708, 163 Pac. 585, 983, Mr. Justice Moore expressed a doubt as to the soundness of the opinion in Kirkwood v. Washington County, supra, but his remarks there are pure dictum, the question of the right to review proceedings of the county court in probate matters being not even reA careful re-examination motely involved. of the decision in the Kirkwood Case and the examination of authorities in addition to those there cited satisfy us with the correctness of Mr. Justice Bean's opinion. Mitchell v. Bay, Probate Judge, 155 Mich. 550, 119 N. W. 916; Ex parte Roundtree, 51 Ala. 42; Sanders v. State, 55 Ala. 42; Bailey v. Winn, 113 Mo. 155, 20 S. W. 21. [3-5] In the light of the authorities we hold that any court subject to the "appellate juris "All judicial power, authority, and jurisdic-diction and supervisory control" of the circuit tion not vested by this Constitution or by laws consistent therewith, exclusively in some other court, shall belong to the circuit courts; and they shall have appellate jurisdiction and supervisory control over the county courts, and all other inferior courts, officers, and tribunals." court is an inferior court, within the meaning of the statutes authorizing the writ of review, and that since the county court is in this class the writ of review will lie. This holding does not conflict with those decisions holding that in probate matters it is a court of general and superior jurisdiction, which simply means that its record imports absolute verity We italicize the word "other" because of its and cannot be attacked collaterally. We are importance in determining what was in the imputing absolute verity to the record of the mind of the framers of the Constitution as to court here and receiving it at its full value. the rank of the county court for the purposes We find therefrom, and not collaterally or of the exercise of that supervisory control outside of it, that such record shows that granted to the circuit courts. If one should the court was without jurisdiction to proceed say, "I have consulted A. and other lawyers," to the admeasurement of dower in the face we at once infer that A. is a lawyer. If a of a dispute of record as to the widow's right newspaper should say, "Smith and other thereto. A proceeding by writ of review is a thieves are in the city," the implication that direct and not a collateral attack upon the |