H. Schmitt & Son, Inc. v. City of Milwaukee

• Decision Date: 11 November 1924
• Citation: 185 Wis. 119,200 N.W. 678
• Parties: H. SCHMITT & SON, INC., v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

185 Wis. 119

200 N.W. 678

H. SCHMITT & SON, INC.,

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

Nov. 11, 1924.

Appeal from Circuit Court, Milwaukee County; Otto H. Breidenbach, Judge.

Suit by H. Schmitt & Son, Inc., against the City of Milwaukee and another. From order sustaining general demurrer to complaint, plaintiff appeals. Order reversed and case remanded.

In July, 1922, the defendant city of Milwaukee adopted a minimum wage ordinance controlling as to labor employed “in any work done by the city of Milwaukee, either new construction work or repair work on any roads, buildings or any other public works whatsoever.” It also provided that all ordinances pertaining to labor are made a part of all contracts, subcontracts, and agreements thereafter made, let, or entered into by the city of Milwaukee. It declared that the purpose of the ordinance is to insure a living wage to all laborers employed on all city work. In July, 1923, a wage scale was fixed under such ordinance, taking effect as of June 1st, and among other things fixing the minimum pay for laborers at 75 cents per hour. (This was sustained in the case of Wagner v. Milwaukee, 180 Wis. 640, 192 N. W. 994.)

Subsequent to the fixing of such wage scale, and on September 10, 1923, the plaintiff, a corporation engaged in the general contracting business, made a written contract with the board of school directors in the name of the city of Milwaukee to furnish the necessary materials and labor for the masonry in the erection of a school building in the Twentieth ward of said city. In the specifications and general conditions given for the consideration of bidders for such work attention was called to prior resolutions adopted by the board of school directors limiting the hours of daily service of laborers and mechanics, and establishing $2 as the minimum wage to be paid any laborer or mechanic so employed for the eight hours of daily service, and that bidders must base their proposal on such resolutions. The plaintiff proceeded under such contract, and alleges entire compliance with such resolution of the board of school directors, except that it has not at all times paid to common laborers the sum of 75 cents per hour, the rate fixed by the aforesaid city ordinance.

The complaint prayed for an injunction to restrain the said city and the city attorney from attempting to enforce any of the penalties provided for in the aforesaid ordinance for any violations thereof on the grounds that plaintiff has no adequate remedy at law and would be subjected to a multiplicity of suits and proceedings in the district court of Milwaukee. The complaint further alleged the various grounds on which it was claimed the ordinance of the defendant city did not apply to or control the work being done by the plaintiff under its contract with the board of school directors.

The trial court sustained the general demurrer of the defendants to the complaint, and plaintiff has appealed.Kaumheimer & Kenney, of Milwaukee (Leon B. Lamfrom, of Milwaukee, of counsel), for appellant.

John M. Niven, City Atty., and Chas. W. Babcock, Asst. City Atty., both of Milwaukee, for respondents.

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

The proposition whether the city ordinances and wage scale recited in the foregoing statement of facts are binding on the board of school directors of the same city, superior to and controlling over any express or implied contrary provisions in any contract made by such board for the erection of a school building, embraces the one question here presented.

[1] It must be conceded that the board of school directors rather than the common counsel have delegated to them under the statutes as they now stand the authority and power to select sites, adopt plans, and make contracts for the erection of school houses in said city. This is so, although the statutes require that such contracts...