Berger v. City of Superior

Decision Date05 January 1918
Citation166 Wis. 477,166 N.W. 36
PartiesBERGER ET AL. v. CITY OF SUPERIOR.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Douglas County; Frank A. Ross, Judge.

Action by M. Berger and others against the City of Superior. Judgment dismissing complaint, and plaintiffs appeal. Affirmed.

Action by plaintiffs, as general taxpayers, and as owners of property affected by a proposed improvement to restrain the city of Superior and the Russell Construction Company from the performance of a contract between them for the paving of one of the streets within the defendant city, on the ground that said contract was void because the fact that: (a) No specifications for a concrete base had been adopted when bids were received; (b) the contract was not let to the lowest responsible bidder for the kind of pavement determined to be laid; (c) the bid of the Russell Construction Company was not accompanied by a contract complete with the exception of the signature of the city, as required by law; (d) the city required a surety company bond; and (e) the street railway tracks were laid wholly on the north side of the street--each invalidated the contract. The court made findings of fact covering the disputed issues and entered judgment dismissing the complaint upon the merits. Plaintiffs appealed.Hanitch & Hartley, of Superior (R. I. Tipton, of Superior, of counsel), for appellants.

H. V. Gard and T. L. McIntosh, both of Superior, for respondent.

VINJE, J. (after stating the facts as above).

[1][2] In view of the nature of the action and the allegations of the complaint, no fuller statement of the issues litigated is deemed necessary. Plaintiffs, though alleged to be owners of property affected by the proposed improvement, cannot maintain this action by reason of such ownership. For any wrong suffered in that capacity they must seek redress through an appeal from the final determination of the city council, provided for in section 959--30g, Stats. 1915. That is the only remedy they have as owners of property affected by the proposed improvement. Newton v. Superior, 146 Wis. 308, 130 N. W. 242, 131 N. W. 986;Dunn v. Superior, 148 Wis. 636, 135 N. W. 145. 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. But in such suit they are not recognized as standing for any direct interest of...

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9 cases
  • Fabick v. Evers
    • United States
    • Wisconsin Supreme Court
    • March 31, 2021
    ...Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ).6 See also Berger v. City of Superior, 166 Wis. 477, 166 N.W. 36 (1918) ; Murphy v. Paull, 192 Wis. 93, 212 N.W. 402 (1927) ; Milwaukee Horse & Cow Comm'n Co. v. Hill, 207 Wis. 420, 241 N......
  • Richards v. Treasurer and Receiver General
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 3, 1946
    ...349 Ill. 46; Price v. Mattoon, 364 Ill. 512; Merritt v. Duluth, 103 Minn. 236; Fitzpatrick v. Flagg, 5 Abb. Pr. (N. Y.) 213; Berger v. Superior, 166 Wis. 477. The statute, G. (Ter. Ed.) c. 29, Section 63, undoubtedly applies where the Commonwealth incurs an obligation or makes an expenditur......
  • Bechthold v. City of Wauwatosa
    • United States
    • Wisconsin Supreme Court
    • February 15, 1938
    ...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 con......
  • Richards v. Treasurer
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 3, 1946
    ...364 Ill. 512, 4 N.E.2d 850;Merritt v. Duluth, 103 Minn. 236, 114 N.W. 758; Fitzpatrick v. Flagg, 5 Abb.Prac., N.Y., 213; Berger v. Superior, 166 Wis. 477, 166 N.W. 36. The statute, G.L.(Ter.Ed.) c. 29, § 63, as added by St. 1937, c. 157, undoubtedly applies where the Commonwealth incurs an ......
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