Bechthold v. City of Wauwatosa

• Citation: 280 N.W. 320,228 Wis. 544
• Parties: BECHTHOLD et al. v. CITY OF WAUWATOSA et al.
• Decision Date: 21 June 1938
• Court: Wisconsin Supreme Court

228 Wis. 544

280 N.W. 320

BECHTHOLD et al.

v.CITY OF WAUWATOSA et al.

Supreme Court of Wisconsin.

April 12, 1938.

On Rehearing June 21, 1938.

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

On motion for rehearing.

Former mandate vacated, judgment reversed and remanded with directions.-[By Editorial Staff.]

For former opinion, see 277 N.W. 657.

WICKHEM, J., dissenting.Bitker, Tierney & Puchner, of Milwaukee (Charles B. Perry, of Milwaukee, of counsel), for appellants.

Roy R. Stauff, City Atty., of Wauwatosa, Bender, Trump & McIntyre and K. A. Godfrey, all of Milwaukee, and W. Wade Boardman, of Madison, for respondents.

Lyel N. Jenkins, City Atty., of Stevens Point, amicus curiae.

PER CURIAM.

In this case plaintiff's motion for a rehearing is granted and arguments will be heard at the May assignment upon the following questions:

(1) Did the failure to comply with sec. 62.15(3), Stats., by publishing notice advertising for proposals for doing the work “not less than once a week for two successive weeks” render the awarding of the contract thereunder wholly void so as to entitle the plaintiffs to judgment enjoining payment by the city of Wauwatosa of any sums of money under the contract?

(2) Did laches in this taxpayer's action defeat the plaintiff's right to relief as prayed?

On Rehearing.

A motion for rehearing was granted in this case and the matter has been reargued and reconsidered. Upon such reconsideration the court is of the view that it was in error in affirming the judgment of the circuit court. In its opinion the court said (277 N.W. page 661):

“In our opinion, the action of the board of public works in advertising for proposals for less than two full weeks before opening the bids must be considered, under all of the circumstances of this equitable action, as amounting to a substantial compliance with the statute.”

This is not a correct statement of the law and is withdrawn. It should have been stated that there was sufficient compliance with the law so that no substantial injury was done to the taxpayers of the municipality and therefore they were not entitled upon equitable considerations to enjoin the payment of the contract price. Upon reconsideration the court is, however, of the opinion that as restated it is erroneous for the following reasons:

The applicable sections of the statutes are set out in the original opinion. In addition to those set out in the original opinion, sec. 62.15(1) provides:

“All public work, the estimated cost of which shall exceed five hundred dollars, shall be let by contract to the lowest responsible bidder; all other public work shall be let as the council may direct.”

The substance of sec. 62.15 has been embodied in our statutes for a great many years and has been before this court for consideration in numerous cases. The first question to be determined in the disposition of this matter is whether the contract when executed and delivered was void. Upon this question this court has in various actions spoken in plain and unambiguous terms. In Dean v. Charlton, 1869, 23 Wis. 590, 99 Am.Dec. 205, an attempt was made to sustain a contract for a patented article on the ground that advertising for bids would be a futile thing as there could be but one bidder.

It was argued therefore that the city of Madison did not need to advertise for bids. The court said (page 604):

“The power to contract for the lighting of the streets of the city was assumed, in that case [The Harlem Gaslight Co. v. The Mayor, etc., 33 N.Y. 309], to be one of the general powers of a municipal corporation. *** But here the question is quite different. It is not necessary to inquire whether the city of Madison, by virtue of its existence as a municipal corporation, would have had the power to contract for paving its streets with the Nicholson pavement, at the expense of the city, after discovering that the provisions of the charter enabling it to cause its streets to be paved at the expense of the lots were inapplicable for that purpose. *** It seeks here to charge the expense upon the lots, and this it has no general power to do by virtue of its mere existence as a municipal corporation; but, if done at all, it can only be done under the statutory authority in its charter, and by complying substantially, if not strictly, with all its requirements.”

In Neacy v. Milwaukee, 1920, 171 Wis. 311, 176 N.W. 871, there was a failure to comply with the charter provisions of the city of Milwaukee with respect to letting a contract to the lowest bidder. The court said, citing cases (page 875):

“It is well settled that contracts binding a municipality can be culminated only in the manner prescribed by the charter, and municipal officers must follow the prescribed procedure step by step.”

See the following cases: Ricketson v. Milwaukee, 1900, 105 Wis. 591, 81 N.W. 864, 47 L.R.A. 685;Chippewa Bridge Co. v. Durand, 1904, 122 Wis. 85, 99 N.W. 603, 106 Am.St.Rep. 931;Cawker v. Milwaukee, 1907, 133 Wis. 35, 113 N.W. 417;White Construction Co. v. Beloit, 1922, 178 Wis. 335, 190 N.W. 195;Wagner v. Milwaukee, 1928, 196 Wis. 328, 220 N.W. 207;State ex rel. Coyle v. Richter, 1931, 203 Wis. 595, 234 N.W. 909;Journal Printing Co. v. Racine, 1933, 210 Wis. 222, 246 N.W. 425;Shulse v. Mayville, 1937, 223 Wis. 624, 271 N.W. 643;Victoria v. Village of Muscoda, Wis., 279 N.W. 663, decided May 17, 1938.

[1][2][3] Upon the authority of these cases it is held that a municipality has no power to make contracts for public improvements unless it proceeds in the manner prescribed by law and that a contract entered into without complying with the charter provisions is void. The contract being void in its inception, the next question for consideration is whether the fact that it has been completely executed on the part of the contractor gives it vitality as a contract. In Cawker v. Milwaukee, supra, that question was presented to the court. The court said (page 418):

“In a general taxpayer's action to prevent the unlawful diversion of general city funds, the relief sought is for the benefit of the whole body of taxpayers, none of whom in that capacity has received any special benefit. Some may have known of the improvement, and others may not. To hold the whole body of taxpayers estopped from questioning the validity of a void contract and preventing the payment of public moneys in discharge thereof because the contractor has done his work would substantially emasculate the principle that general taxpayers may by action in equity set aside unlawful contracts and restrain public officers from paying out public funds in discharge of work done under such contracts. *** The power to successfully maintain such an action has never been limited to cases where the work has not yet been done, and, if it were, there would be few cases where unfaithful public officials and designing contractors could be prevented from despoiling the public...