Cawker v. City of Milwaukee

• Decision Date: 15 October 1907
• Citation: 113 N.W. 417,133 Wis. 35
• Parties: CAWKER ET AL. v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

133 Wis. 35

113 N.W. 417

CAWKER ET AL.

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

Oct. 15, 1907.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by Sarah M. Cawker and others, executors, against the city of Milwaukee and others. From a judgment for plaintiffs, defendants appeal. Affirmed.John T. Kelly, City Atty., for appellant city.

Winkler, Flanders, Bottum & Fawsett (Arthur Jones, of counsel), for appellant paving company.

Ryan, Ogden & Bottum, for respondents.

WINSLOW, J.

This is an action in equity by the plaintiffs, as general taxpayers in the Third ward of the city of Milwaukee, against the city, its treasurer and comptroller, and the Central Bitulithic Paving Company, to declare void a certain alleged contract made by the city with said paving company for the repaving of a portion of Wisconsin street and enjoin the city from paying therefor out of city funds. The complaint alleged that the pavement was patented, and showed that the city in making the contract had not complied with the provisions of the charter covering the use of patented articles, but had adopted the same methods condemned by this court in Allen v. Milwaukee, 128 Wis. 678, 106 N. W. 1099, 5 L. R. A. (N. S.) 680. The complaint did not allege that any special assessments had been made against property to pay for any part of the work, or that the plaintiffs owned any property subject to assessment therefor, but alleged that the contract had been fully completed. Separate general demurrer on the part of the contractor and on the part of the city and its officers were overruled, and appeals taken.

It was held in Allen v. Milwaukee, supra, after full consideration, that, where the city had attempted to contract for the use of a patented article or process without following the charter requirements covering that subject, such contract was void, and we see no good reason for reviewing that decision now. It is true that in the Allen Case special assessments were to be made to cover a part of the cost of the work, while in the present case the entire cost appears to be chargeable to the city; but in that case a part of the consideration was to be paid by the city, and the payment of this part was enjoined, as well as the issuance of assessment certificates, on the ground of the invalidity of the entire contract, and it was said that the legislation in question “was intended to exclude any other method of acquiring for the city the advantages of patented rights, articles, or processes for any purpose.” Following that case, we are obliged to hold that the paving contract in the present case was void.

But it is argued that the plaintiffs are estopped because they did not commence their action until the completion of the work, and in support of this argument State ex rel. Schintgen v. La Crosse, 101 Wis. 208, 77 N. W. 167,State ex rel. v. Superior, 108 Wis. 16, 83 N. W. 1100, and other cases, are cited, where persons owning real estate especially benefited by a public improvement have stood by without protest or action while the improvement was going on, and were held estopped from questioning the validity of special assessments levied against the benefited real estate. In our judgment the principle of these cases has no application. In those cases mere private relief was sought by the property owner to prevent the collection of an assessment against his individual property when he had remained silent until the completion of the work, knowing that the improvement was going on and that his property was being specially benefited or claimed to be specially benefited thereby. 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. This principle has been so many times asserted in this state that it seems unnecessary, to cite the authorities at length. Peck v. School District, 21 Wis. 516, is the leading case, and others will be found cited in Harley v. Lindemann, 129 Wis. 514, 109 N. W. 570, 8 L. R. A. (N. S.) 124, and Kircher v. Pederson, 117 Wis. 68, 93 N. W. 813. 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 treasury. The right does not depend upon the speed with which the law is broken. Indeed, it is held that money already paid on an illegal contract may be recovered back if the transaction be marked by haste or collusion, although this court has held that there may be cases where equity will deny this extreme relief upon a showing of entire good faith. Frederick v. Douglas County, 96 Wis. 411, 71 N. W. 798. The application of the principle of estoppel to a general taxpayer's action has been carried no further than this in this court, nor is it conceived that it ought to be carried further.

We have discussed all of the propositions urged by the appellants in support of their demurrers. Another question has occurred to our own minds which may deserve some consideration. The complaint before us alleges that the plaintiffs are general taxpayers, and demands that the contract be declared void, and...