Hall v. City of Milwaukee

• Decision Date: 21 October 1902
• Parties: HALL v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

115 Wis. 479

91 N.W. 998

HALL

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

Oct. 21, 1902.

Appeal from superior court, Milwaukee county; James O'Neill, Judge.

Bill by George B. Hall against the city of Milwaukee, impleaded, etc., to enjoin the city from proceeding under an alleged invalid contract. From a decree for plaintiff, defendant city appeals. Affirmed.

It is provided by the charter of Milwaukee (chapter 3, § 9) that preceding the first Tuesday in April of each year the council shall require the city clerk to advertise for proposals to do the advertising for the city of all ordinances, notices, etc., required to be published in a newspaper, gives direction for filing the bids, and provides: “No bids shall be considered by said clerk except from a daily newspaper which has been published in said city at least two years consecutively next before the date of the bid.” After opening the bids, the clerk is required to tabulate them, and report to the city council, which body is required by resolution to designate and award such advertising to the newspaper which shall offer to do such advertising “at the lowest price for the year then ensuing,” and is also required to designate such newspaper so receiving the contract as the proper official newspaper of said city. In ostensible compliance with this section, the city clerk, in March, 1902, advertised for bids, and, after certain bids had been refused, resolution accepting one thereof had been vetoed by the mayor, and all such bids rejected as too high, further bids were received, among which, material to this case, were those of the Reporter Publishing Company at 8 and 7 cents for first and subsequent insertions, respectively, and of the News Publishing Company at 14 and 16 cents for first and subsequent publications. Thereupon the council, by resolution, awarded the contract to the News Publishing Company, and designated the Milwaukee Daily News as the official English newspaper of the city. Such resolution, being vetoed, was passed over the mayor's veto, and a contract in accordance therewith in form executed. The plaintiff, as a taxpayer, brought suit to adjudge such contract void, and enjoin the city from incurring any liability thereunder; asserting its invalidity on the ground that the News Company had not bid the lowest price for the work, but that the Reporter Publishing Company had bid lower. The defense presented is to the effect that the paper published by the latter is not a newspaper within the meaning of the charter requirement. The court found as a fact “that the Daily Reporter is a daily newspaper, and ever since the 1st day of January, 1899, has been, and now is, printed daily in English, and published in the city of Milwaukee.” It is also found that the Reporter is an 8-page paper, 18 by 12 inches, published in two editions, one in the morning and one in the afternoon, the morning edition containing the eight pages and the afternoon only four; that the morning edition has a daily and bona fide paid circulation of 375 copies per day in the city and county of Milwaukee; that the afternoon edition has a circulation of 578 copies, out of which 210 are daily sent to individual paying subscribers in various parts of Milwaukee and other counties of the state and outside the state, and 368 copies are daily sent to parties throughout the United States upon subscriptions made by local commissionmen and dealers in the city of Milwaukee who desire to have said paper sent to customers and other persons in the country with whom they deal; that the afternoon edition, among other matters, contains daily news of the daily markets in grain, as shown by the transactions on the boards of trade of Milwaukee, Chicago, New York, and other cities in the United States and abroad, the movements of grain, financial quotations from the chief money exchanges, a review of live stock and other markets, a list of judgments entered in the courts of Milwaukee county and of satisfactions thereof, a statement of mechanic's liens filed or released, and of all conveyances filed with the register of deeds of Milwaukee county, chattel mortgages filed with the city clerk of the city of Milwaukee and releases thereof, time-tables of the railroads in Milwaukee, quotations showing the prices upon the various produce markets in the city of Milwaukee, notices ordered to be published by Milwaukee courts, sheriffs' sales, and general advertisements of merchants and business men in the city of Milwaukee, besides items of general interest and news to the public at large; that the morning edition contains, in addition, news items of the daily happenings of all the courts in Milwaukee county, a list of causes upon the daily calendars in said courts for the ensuing day, a statement of the doings for the day in bankruptcy court; and also all the matter contained in the evening edition of the night before; the weather report and forecast, a statement of what buildings are being planned for erection, with the names of architects and general character and description of buildings which are being erected, and advertisements attractive to the general public; and also contains, in varying quantities, sometimes more than a column, so-called “plate matter,” being information and news concerning matters of general interest to the public at large; and also contains matters and items of general news and information beyond those above referred to, many legal notices (of which some 3,000 have been published since the commencement of said paper), and that there has been published in said paper the notice of tax sale for delinquent taxes in the year 1901; also that the morning edition of the Daily Reporter circulates generally among all classes of professional and business men in the city and county of Milwaukee. Such finding is in some respects assailed, as will appear more fully in the opinion. The court held that the Daily Reporter is a newspaper within the designation of the charter, hence that the bid of the News Company was not the lowest, and accordingly adjudged void the contract with the latter, and perpetually enjoined the city of Milwaukee and its officers from creating any liability with reference to publication of any ordinances, etc., in the Milwaukee Daily News, and from delivering any such ordinances to the News Publishing Company for publication, and from paying to it any money under said contract, or issuing city orders or warrants for any work done thereunder; from which judgment the defendant appeals.Carl Runge, City Atty., for appellant.

Charles F. Hunter, for respondent.

DODGE, J. (after stating the facts).

While the findings of fact, of which the substance is given in the foregoing statement, are perhaps in no respect wholly unsupported by evidence, they are at least capable of conveying a somewhat exaggerated conception both of the information and news of interest to the general public contained in the Daily Reporter, and the extent to which it circulates generally among professional and business men. We...