Akin v. Kewaskum Community Schools Joint School Dist. No. 2, 512

• Citation: 64 Wis.2d 154,218 N.W.2d 494
• Decision Date: 17 June 1974
• Docket Number: No. 512,512
• Parties: Gene AKIN et al., Appellants, v. KEWASKUM COMMUNITY SCHOOLS JOINT SCHOOL DIST. NO. 2 et al., Respondents.
• Court: Wisconsin Supreme Court

Page 494

218 N.W.2d 494

64 Wis.2d 154

Gene AKIN et al., Appellants, v. KEWASKUM COMMUNITY SCHOOLS JOINT SCHOOL DIST. NO. 2 et al.,

Respondents.

No. 512.

Supreme Court of Wisconsin.

June 17, 1974.

Goldberg, Previant & Uelmen, Milwaukee (Walter F. Kelly, Milwaukee, of counsel), for appellants.

McKenna Law Office, Kewaskum, Flanagan, Steinhilber & Chaney, Oshkosh, Melli, Shiels, Walker & Pease, Madison (Aldwin H. Seefeldt, of Schloemer, Schlaefer & Alderson, West Bend, of counsel), for respondents.

BEILFUSS, Justice.

Although the plaintiffs-appellants state this issue in a much more detailed manner, we believe the issue to be whether the trial court abused its discretion in refusing to grant the plaintiffs' motion for a temporary injunction.

This action has not been tried. The trial court had before it only the motion supported by extensive affidavits, the complaint and arguments of counsel. The issues, both factual and legal, must await a trial and should not be disposed of upon the record as it now stands.

Sec. 268.02(1), Stats., ¹ provides that the trial court may grant a temporary injunction during the litigation if it appears from the pleadings that a party is entitled to a judgment and the commission or continuance of the acts sought to be restrained would injure him.

This court has stated:

'It is an elementary rule of law that the granting or refusal of a temporary injunction is a matter lying within the discretion of the trial court, and its determination in regard thereto will not be upset on appeal unless an abuse of discretion is shown. Fassbender v. Peters (1923), 179 Wis. 587, 588, 191 N.W. 973; Culligan, Inc., v. Rheaume (1955), 269 Wis. 242, 248, 68 N.W.2d 810. The merits of the case are not before this court on the instant appeal; the only question is whether the trial court abused is discretion. Bartell Broadcasters v. Milwaukee Broadcasting Co. (1961), 13 Wis.2d 165, 171, 108 N.W.2d 129, 133.' Codept Inc., v. More-Way North Corp. (1964), 23 Wis.2d 165, 171, 127 N.W.2d 29. ²

One of the reasons given by the trial court for denying the motion for a temporary injunction was that the plaintiffs had not established a reasonable probability that they would ultimately prevail in a trial of the issues. In Mogen David Wine Corp. v. Borenstein, supra, page 509, 66 N.W.2d, page 159, we held:

'We approve of the following statement appearing in the opinion of the Iowa supreme court in the case of Beidenkopf v. Des Moines Life Ins. Co. (1913), 160 Iowa 629, 639, 142 N.W. 434, 437, 46 L.R.A.N.S., 290:

'The writ (temporary injunction) is to a great extent a preventive remedy; and where the parties are in dispute concerning their legal rights, it will not ordinarily be granted until the right is established, especially if the legal or equitable claims asserted raise questions of a doubtful or unsettled character. " See also: Codept, Inc., v. More-Way North Corp., supra, p. 172, 127 N.W.2d 29.

The plaintiffs concede that a common school district, under the statutory law of Wisconsin and the cases construing it, is not required to advertise and accept the lowest responsible competitive bid in construction projects.

Consolidated School Dist. v. Frey (1960), 11 Wis.2d 434, 439, 105 N.W.2d 841, 844, states:

'. . . The letting of a construction contract by the school district, however, was not governed by sec. 66.29 in any other sense. Sec. 66.29 does not apply to contracts by a public body for public work unless that body is charged by some other statute with the duty of advertising for, and receiving proposals for such public work. Cullen v. Rock County (1943), 244 Wis. 237, 12 N.W.2d 38. . . .'

And in Menzl v. Milwaukee (1966), 32 Wis.2d 266, 271, 145 N.W.2d 198, 201, we held:

'If the contract in question is not subject to the provisions of the bid section, the city is not bound by that type of procedure and even, after determining to invite bids, may reject any or all bids and ask for new bids, or may contract on the basis of reasonable business judgment with one who is not the low bidder. Cullen v. Rock County (1943), 244 Wis. 237, 240, 12 N.W.2d 38; 10 McQuillin, Mun. Corp. (3d ed.), pp. 272--274, sec. 29.31.'

The main thrust of the plaintiffs' argument is that the law in Wisconsin should be changed. They contend that if a municipality is not obligated to advertise for competitive bids by statute, but has in fact done so, it must pursue that course to finality. In support of this argument they cite and quote a Minnesota case, Griswold v. County of Ramsey (1954), 242 Minn. 529, 65 N.W.2d 247. That case, in the main, does support their argument.

The trial court acknowledged the Griswold decision and the plaintiffs' argument in support of adopting the Griswold rationale. However, the trial court concluded that to adopt Griswold would be inconsistent with our prior cases construing the statutes as to the necessity of competitive bidding by specified municipalities, and that it was not proper to do so in ruling upon a motion for a temporary injunction. The trial court concludes, in effect, that it would not predict whether this court would change the law.

This reasoning is supported by Culligan, Inc. v. Rheaume, supra, 269 Wis. at page 250, 68 N.W.2d at page 815:

"Where an issue of law is raised by the defendant, it is discretionary with the trial court whether to pass on the question of law at the time of the application for temporary injunction or to defer so doing until the trial on the merits.

"Mogen David Wine Corp. v. Borenstein, 267 Wis. 503, 66 N.W.2d 157.

"As we interpret the language of the court in the case of Mogen David Wine Corp. v. Borenstein, 267 Wis. 503, 66 N.W.2d 157, the trial court may pass on the questions of law raised and grant the temporary injunction...