Bechthold v. City of Wauwatosa

• Citation: 277 N.W. 657,228 Wis. 544
• Parties: BECHTHOLD et al. v. CITY OF WAUWATOSA et al.
• Decision Date: 15 February 1938
• Court: United States State Supreme Court of Wisconsin

228 Wis. 544

277 N.W. 657

BECHTHOLD et al.

v.CITY OF WAUWATOSA et al.^*

Supreme Court of Wisconsin.

Feb. 15, 1938.

Appeal from a judgment of the Circuit Court for Milwaukee County; Daniel W. Sullivan, Judge.

Affirmed.

The action was commenced on August 19, 1937, by the plaintiffs, Walter A. Bechthold and Walter G. Winding, as taxpayers, on their own behalf as well as on behalf of all other taxpayers in the City of Wauwatosa, against the defendants, City of Wauwatosa, Federal Paving Corporation, and Fred Prudisch, city treasurer, to enjoin the city and its treasurer from paying out any sums of money on a certain contract theretofore entered into by the city with Federal Paving Corporation, for the resurfacing of a part of West North avenue with a bituminous pavement. The contract was entered into on July 16, 1937. The work was started on August 5, and continued up until August 19, when the action was commenced. The contract price was $27,310.40. At the time of the commencement of the action work had been performed and material furnished amounting to about $10,500. Accompanying the summons and complaint was an order requiring the city and its treasurer to show cause why they should not be enjoined from in any manner recognizing the validity of the contract or from paying out any moneys either due or to become due thereon. The defendants answered, and trial of the issues was had on August 24, 25, and 26, 1937. The plaintiff Bechthold is in the contracting business and associated with the firm of Payne & Dolan of Wisconsin, Inc. The plaintiff Winding is the president of Jacobus & Winding, a corporation engaged in the contracting business. Both of the corporations just mentioned submitted bids for the work. The court found the facts in respect to the various steps taken by the city which led up to the making of the contract and which will be stated at length in the opinion, and then concluded (1) that the city of Wauwatosa substantially complied with all of the statutory requirements relating to the proceedings in the letting of the contract for the public improvement in question; (2) that, by reason of the laches of plaintiffs, as taxpayers, they are estopped to maintain this action to enjoin the payment by the city or its officers of the amounts due or to become due as alleged in their complaint. From a judgment which dismissed the plaintiffs' complaint on its merits, entered September 20, 1937, the plaintiffs appealed.Bitker, Tierney & Puchner, of Milwaukee (Charles B. Perry, of Milwaukee, of counsel), for appellants.

Roy R. Stauff and Bender, Trump & McIntyre, all of Milwaukee (E. L. McIntyre, of Milwaukee, of counsel), for respondents.

NELSON, Justice.

In order that the several contentions of the plaintiffs may be understood, it will be necessary to state the facts fully. There is no material dispute as to what they are. The city of Wauwatosa is a city of the third class. Its common council is composed of ten members. It has a board of public works consisting of five members and duly organized pursuant to section 62.14 (1), Stats. West North avenue is one of its principal streets. Prior to the proceedings hereinafter recited, West North avenue had been permanently improved with concrete, but that pavement was in a bad, wornout condition. On December 15, 1936, its common council passed a resolution directing that the proper city officials request a PWA grant for repairing and resurfacing West North avenue from North Sixtieth street to Wauwatosa avenue, and also another street. Thereafter some correspondence was had between the city engineer and the PWA administrator. No grant of PWA funds having been made to the city in compliance with its request, the board of public works on May 14, 1937, passed a resolution recommending that the common council direct the board of public works to view the premises and make assessments of benefits and damages for the repair and resurfacing of West North avenue from Sixtieth street to Wauwatosa avenue. On May 18, pursuant to such recommendation, the common council unanimously passed a resolution directing the board of public works to view the premises and to make an assessment of benefits and damages for the repair and resurfacing of said street. On June 3d the board of public works filed its preliminary report on the assessment of benefits and damages. On June 15th the council resolved “that the report of said board of public works of the assessment of benefits for the proposed resurfacing to be constructed in that portion of West North Avenue from North 60th street to Wauwatosa Avenue be and the same is hereby adopted; that all proceedings of the board of public works relating to making such assessments are hereby ratified and confirmed and *** that the portion of cost of such improvement which shall be paid for by the city at large shall be the expense of improving street crossing intersections.” On June 15th the common council, by a unanimous vote, also passed a resolution directing the board of public works to advertise for bids as follows: “Be it resolved by the common council of the city of Wauwatosa that the board of public works be and they are hereby directed to advertise for bids for surfacing West North Avenue from North Sixtieth street to Wauwatosa Avenue with a 3-inch bituminous pavement.”

On June 17th the chairman of the board of public works directed the city engineer to prepare specifications for the resurfacing of said avenue. On June 24th the advertisement for bids was first published in the Wauwatosa News. On June 26th the specifications were completed by the city engineer, who, according to his testimony, left them with the city clerk. According to the testimony of the city clerk, the specifications were filed in his office on June 28th. The specifications, however, were on the same day withdrawn by the city engineer, and no copy thereafter remained in the clerk's office up to the time that bids were opened. On July 1st the advertisement for bids was published a second time in the Wauwatosa News. The bids submitted were opened on that same evening. The advertisement for bids announcedthat the bids would be opened on the 1st day of July, 1937, at the office of the city clerk at 7:30 p. m. The specifications provided for alternate materials which, so far as here material, were as follows:

“The material for this work shall meet the following requirements:

“Binder Material.

“(1) Class ‘H’ course (coarse) size open graded Bituminous Concrete approved by the United States Department of Agriculture, Bureau of Public Roads, Washington, D. C.

“Or

“(2) Cold Asphalt Pavement (Class ‘H’ Liquefier Type) Section 403, Wisconsin State Highway Commission Specifications 1935 edition.

“Surface Course.

“Class ‘J’ or higher type sheet asphalt approved by the U. S. Dept. of Agriculture, Bureau of Public Roads, Washington, D. C., or equal.”

The bid of the defendant Federal Paving Corporation was $27,310.40. Jacobus & Winding Construction Company bid $27,835. Payne & Dolan, Inc., bid $28,098.20. Two other contractors submitted bids pursuant to the advertisement for alternate proposals on hot sheet asphalt, for which there were specifications. These bids were considerably higher than the bids mentioned above. On July 6th the board of public works met and was told by the defendant Federal Paving Corporation that it proposed to furnish “Colprovia” under its bid. “Colprovia” was approved as a bituminous pavement by United States Bureau of Public Roads. It was a patented sheet asphalt pavement. “Colprovia” specifications were on file in the office of the city engineer. The board recommended that the contract be let to Federal Paving Corporation. On the same day the common council passed a resolution authorizing the letting of the contract to Federal Paving Corporation. On July 16th the contract to which the “Colprovia” specifications had been attached was signed by the city. The work started on August 5th. On that day the plaintiff Bechthold told Schwerm, an officer of Federal Paving Corporation, that an action was going to be started on the job. The action was not started until August 19th. Work on the job was thereafter discontinued until after the judgment dismissing the plaintiffs' complaint was entered by the circuit court. The work was thereafter fully completed.

An examination of the relevant statutes pursuant to which the city purported to act reveals that the city did not strictly comply with several provisions thereof. It is contended by the plaintiffs that the proceedings for that reason were invalid and void.

[1] Before taking up the several contentions of the plaintiffs, the nature of the action should be considered. It is a taxpayers' action brought on behalf of the plaintiffs and all other taxpayers similarly situated. Taxpayers' actions are entertained on the theory that, unless the threatened action of the municipality complained of is restrained, the taxpayer and his class will sustain some pecuniary loss. It has been held that a taxpayer cannot sue to enjoin an illegal or unauthorized act on the part of a municipality unless such act will, if unrestrained, result in injury or loss to him. Bell v. Platteville, 71 Wis. 139, 36 N.W. 831;Kasik v. Janssen, 158 Wis. 606, 149 N.W. 398;Milwaukee Horse & Cow Comm. Co. v. Hill, 207 Wis. 420, 241 N.W. 364;Stuart v. City of Neenah, 215 Wis. 546, 255 N.W. 142.

In Berger v. Superior, 166 Wis. 477, 166 N.W. 36, a taxpayers' action, it was said: “As general taxpayers they may maintain a suit in equity to restrain the performance of the contract if it is made to appear that it is invalid, and that loss will ensue to the general taxpayers through its performance.”

[2] It is clear that a taxpayers' action may be maintained to restrain the performance of a contract when it appears that the contract is invalid and that loss will ensue to the taxpayers if the municipality performs under it. It appears that the...