City of Madison v. Hyland, Hall & Co.

• Decision Date: 30 June 1976
• Docket Number: No. 75--319,75--319
• Citation: 73 Wis.2d 364,243 N.W.2d 422
• Parties: , 1976-1 Trade Cases P 60,951 CITY OF MADISON et al., Plaintiffs-Respondents, v. HYLAND, HALL AND COMPANY et al., Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 422

243 N.W.2d 422

73 Wis.2d 364, 1976-1 Trade Cases P 60,951

CITY OF MADISON et al., Plaintiffs-Respondents, v. HYLAND, HALL AND COMPANY et al., Defendants-Appellants.

No. 75--319.

Supreme Court of Wisconsin.

Argued June 1, 1976.

Decided June 30, 1976.

Robert J. Kay (argued), and Geisler & Kay, Madison, on brief, for defendants-appellants.

Willard S. Stafford (argued), Robert Horowitz (argued), and Stafford, Rosenbaum, Rieser & Hansen, Madison, on brief, for plaintiffs-respondents.

HEFFERNAN, Justice.

This is an appeal from an order of July 31, 1975, overruling a demurrer to the complaint. The principal question raised on appeal is whether cities and counties have standing to sue for treble damages under the Wisconsin antitrust act. We conclude that they do, and affirm the order.

A civil antitrust action was commenced by plaintiffs on September 21, 1973. The City of Madison and Dane County charge the defendants with fixing bids on plumbing, heating, ventilating, and air-conditioning contracts, in violation of ch. 133, Stats. ¹ Under ch. 133, the City of Madison and Dane County now pursue two civil remedies for the alleged conspiracy. They demand treble damages under sec. 133.01; and, pursuant to sec. 133.23, they seek recovery of payments on various contracts made with the defendants. Madison sues in its capacity as a city and as a school district. Seventeen defendants were originally named, but some have been dismissed pursuant to settlements. Eight defendants remain. Three defendants bring this appeal.

Plaintiffs' second amended complaint alleges that a continuing conspiracy, beginning about 1958 and continuing until at least 1969, existed among all the defendants to restrain and prevent competition in the supply and price of mechanical construction, and that, pursuant to such conspiracy, the defendants allegedly submitted collusive bids on mechanical work. The complaint alleges that each of the defendants was a member of the conspiracy and that each defendant, while a member of the conspiracy, entered into contracts with the plaintiffs with respect to some 103 projects listed in Exhibit A, appended to the complaint, which contracts were founded upon and connected with the conspiracy. Exhibit A indicates the particular plaintiff for which each specific construction contract was performed, the particular defendant corporation or partnership which performed the construction services, the name of the project, and the total payments made by the specific plaintiff to the specific contractor.

Defendants demurred to the second amended complaint on the following grounds: (1) Plaintiffs have no standing to sue for treble damages under sec. 133.01, Stats.; (2) plaintiffs improperly united several causes of action in their second amended complaint; (3) the claims set forth in the second amended complaint are barred by the applicable statute of limitations; and (4) sec. 133.23 is unconstitutional on its face. The trial court overruled the demurrer as to the first three grounds asserted and deferred its ruling on the fourth until trial.

Defendants contend that neither the City of Madison nor Dane County has standing to assert a claim for treble damages under sec. 133.01, Stats. This is a question of first impression in this state.

The relevant statutory language in sec. 133.01(1), Stats., arguably permitting the recovery of treble damages, is:

'133.01 Unlawful contracts; conspiracies. (1) . . . Any such person, corporation, copartnership, trustee or association shall also be liable to any person transacting or doing business in this state for threefold the damages he may sustain by reason of the doing of anything forbidden by this section, and the cost of suit including a reasonable attorney's fee. . . .'

Sec. 133.04, Stats., defines 'person' as follows:

'133.04 What organizations included. The word 'person' wherever used in ss. 133.01 to 133.03 shall be deemed to include, besides individuals, corporations, partnerships and associations existing under or authorized by the laws of the United States, any of the territories, of this or any other state or of any foreign country. . . .'

Sec. 990.01(26), Stats., also defines 'person':

'990.01 Construction of laws; words and phrases. In the construction of Wisconsin laws the words and phrases which follow shall be construed as indicated unless such construction would produce a result inconsistent with the manifest intent of the legislature:

'(26) Person. 'Person' includes all partnerships, associations and bodies politic and corporate.'

Defendants argue that the city and county are not 'persons' within the meaning of either sec. 133.04, Stats., or sec. 990.01(26), and that, even if they were, they are not 'transacting or doing business in this state' within the meaning of sec. 133.01. ² We disagree.

Because sec. 133.04, Stats., specifically relates to actions brought under sec. 133.01, it controls over any inconsistent definition of 'person' found elsewhere in the statutes. Schlosser v. Allis-Chalmers Corp. (1974), 65 Wis.2d 153, 222 N.W.2d 156. However, statutes relating to the same subject matter should be harmonized if possible. Weiss v. Holman (1973), 58 Wis.2d 608, 619, 207 N.W.2d 660.

By statute, the City of Madison is 'a body corporate and politic, with powers and privileges of a municipal corporation at common law and conferred by these statutes.' Sec. 66.019, Stats. This court has repeatedly held that a city is a municipal corporation. Columbia County v. Wisconsin Retirement Fund (1962), 17 Wis.2d 310, 317, 116 N.W.2d 142; Madison Metropolitan Sewerage Dist. v. Committee on Water Pollution (1951), 260 Wis. 229, 50 N.W.2d 424. A city is a 'body politic and corporate.' State ex rel. Poole v. Menomonee Falls (1972), 55 Wis.2d 555, 561, 200 N.W.2d 580.

Sec. 59.01(1), Stats., refers to counties as bodies corporate, and this court has so held in State ex rel. City of Shawano v. Engel (1920), 171 Wis. 299, 177 N.W. 33. While a county is not, strictly speaking, a municipal corporation, this court has held that it is a 'quasi-municipal corporation' (Engel, supra, p. 304, 177 N.W. 33; Columbia, supra, 17 Wis.2d p. 317, 116 N.W.2d 142), with many of the attributes of a municipal corporation (Madison Metropolitan Sewerage Dist., supra). ³

Under sec. 990.01(26), Stats., it would appear that both cities and counties are 'bodies politic and corporate' and are, therefore, 'persons' within the meaning of that statute. While the statutes do not specifically state that a county is a body politic, this court has noted that a county, like a city, is a body politic. Douglas County v. Industrial Comm. (1957), 275 Wis. 309, 81 N.W.2d 807; Columbia, supra; Kyncl v. Kenosha County (1968), 37 Wis.2d 547, 155 N.W.2d 583.

There is, then, no contradiction between secs. 133.04 and 990.01(26), Stats. Reading these two sections together, we conclude that cities and counties are 'corporations' within the meaning of sec. 133.04 and 'bodies politic and corporate' within the meaning of sec. 990.01(26). Thus, the City of Madison and Dane County are 'persons' within the meaning of sec. 133.01, Stats., and are entitled to sue for treble damages.

Since we conclude that, under the consistent interpretations of this court holding that cities and counties are persons under the law and are, hence, entitled to use the treble-damages remedy of sec. 133.01, Stats., it is perhaps superfluous to further consider the statutory interpretations which lead to the same result. We will, however, briefly address the arguments raised by defendants.

Defendants argue that this court very recently in State ex rel. Department of Public Instruction v. Department of Industry, Labor and Human Relations (1975), 68 Wis.2d 677, 229 N.W.2d 591, held that the state and its political subdivisions are bodies politic but not corporate and therefore not within the definition of 'person' in sec 990.01(26), Stats., or within the definition of 'person' as used in sec. 133.04. The defendants misread that case. That case was concerned only with the statutes of the state itself and agencies that are the direct administrative arms of the state. The case did not deal with governmental entitles such as cities and counties.

The state, of course, is the sovereign, deriving its rights from the people; and it is the body politic which was the power to create corporations, either private or public. Cities and counties are, however, the creatures of the state's incorporation power; and, by the interpretations of this court, cities and counties are, respectively, municipal corporations or quasi-municipal corporations. They, furthermore, are bodies politic under sec. 990.01(26), Stats. State ex rel. Department of Public Instruction v. Department of Industry, Labor and Human Relations, supra, supports, rather than contradicts, the corporate status of cities and counties.

The defendants also rely on the legislature's failure to pass bills in 1973 and 1975 which would have specifically permitted a county or a municipality to sue for treble damages in state antitrust actions. Had this court previously determined that counties or cities did not have standing to sue for treble damages, the failure of the legislature to enact a law to overturn such decision would be relevant to the question of the legislature's acquiescence in a prior holding. Such prior holding, however, has never been made by this court.

The nonaction of the legislature in failing to expressly provide for treble damages in a case such as this cannot be construed as an expression of legislative intent that cities and counties ought not have that remedy or that they do not presently possess such remedy under the existing statutes. The most that can be gleaned from these abortive attempts at amending the statute is the desire of some legislators to express with greater clarity than does the present statute the right of these municipalities to be afforded...