concurring in part and dissenting in part:
The majority opinion states, ante at 1234, “We hold that under the language of I.C. § 50-1716 the city did not have jurisdiction to order these improvements prior to May 9 . .. . ” With that statement, I agree. However, the statement which immediately follows it (“the mere fact that the orders were not signed until after May 9 does not validate them”) begs the real question: when does an order become an order? The majority assumes that the city can be held to have ordered these improvements before it ever signed the order form for them. The majority arrives at that conclusion, finding as a fact that “the change orders had already been placed in the process which would lead to their being signed and approved by all of the parties.” Ante at 1234. The majority then finds that the city had ordered these improvements even though the orders had never been signed. The majority justifies this conclusion by stating that,
“A contrary holding would allow the city to have the contracts on the mayor’s desk, waiting to be signed, when the public hearing is held. If the mayor signs them the next day, under the city’s logic the property owners could be assessed with these costs.” Ante at 1234.
It is interesting to note that the majority concludes, with regard to item No. 3, the $7,316.41 charge for installation of the irrigation system, that “[t]he City of Blackfoot had obligated itself to these change orders prior to May 9, 1974, . . ..” Ante at 1233 *612(emphasis added). As to Item No. 3, the majority concludes, and I concur, that those costs cannot'be assessed against the appellants. But with regard to Item No. 1, the $24,339.60 for beautification of sidewalks, the order had not been signed, and therefore the city had not “obligated itself” as it had with regard to the charges for installation of the irrigation system. The majority assumes that because “the change orders had already been placed in the process which would lead to their being signed and approved by all the parties,” ante at 1234, the city had irrevocably committed itself regardless of what evidence was presented at the hearings which were subsequently held. The trial court apparently didn’t think so. It made no such finding of fact. It is hardly appropriate for this Court to make such a finding on appeal. The majority cannot point to any competent uncontroverted evidence in the record to support its assumption that the city intended to go ahead and sign the orders regardless of what evidence was presented at the hearings. Consequently, we must indulge in the well established legal presumption that the city officials would duly carry out their official responsibilities. Roper v. Elkhorn at Sun Valley, 100 Idaho 790, 605 P.2d 968 (1980); Farm Bureau Finance Co., Inc. v. Carney, 100 Idaho 745, 605 P.2d 509 (1980).
As of May 9, 1974, the city had not “obligated itself” by signing the orders, and therefore, in my view, the improvements had not been ordered within the meaning of I.C. § 50-1716. I would affirm the trial court, except as to the $7,316.41 for the installation of the irrigation system, which I agree the city had ordered, that is, “obligated itself” for, prior to the May 9 hearing date.
DONALDSON, J., concurs.