Hall v. City of Chippewa Falls
| Decision Date | 23 September 1879 |
| Citation | 2 N.W. 279,47 Wis. 267 |
| Parties | HALL v. THE CITY OF CHIPPEWA FALLS |
| Court | Wisconsin Supreme Court |
APPEAL from the Circuit Court for Chippewa County.
Action for work done by plaintiff under contract with the defendant city, in grading, claying and graveling a street in said city. The complaint alleges, among other things, that the contract between plaintiff and the city (which is not set out in full) was entered into in August, 1874; and that in November, 1874, certificates of said work were issued to plaintiff, which are set out at length, and recite the making of said contract under authority of ch. 169 of 1873, the approval and acceptance of the work by the mayor, street committee and city surveyor, its value, and the fact that it was chargeable to and a lien upon certain lots in said city. The complaint then further alleges, that no part of said sum has been paid; that the whole amount thereof, with interest from November 28, 1874, is due plaintiff from said city; and that the certificates are void, and not a lien upon the lots therein, for the following reasons: (1) Because there has never been any land in said city corresponding to the descriptions in said certificates. (2) Because the resolution providing for the work done by plaintiff was passed on the day of its introduction by an affirmative vote of less than two-thirds of the members of the common council, and before the proceedings of the council relative thereto had been published in the official papers of said city, and were never referred to any committee, and no estimate was made of the expense thereof or of the amount to be assessed on the lots abutting on said street, or of the number of cubic yards to be filled or excavated, etc., prior to the time when said grading was ordered to be done, nor was any such estimate filed with the city clerk. (3) Because "no ordinance resolution, order, by-law or proceeding was ever passed or adopted, or contract let, made or awarded" for such work "at the expense in whole or in part of the lots or any of them abutting or fronting on said street." (4) Because "none of the laws or ordinances, regulations resolutions or by-laws" providing for said work was passed by an affirmative vote by a majority of the common council, or signed by the mayor, or duly published. (5) Because no notice of the time or place for receiving bids for such work was ever published in any official paper of said city. It is further alleged that before the commencement of the action payment of the amount was demanded of and refused by the city, plaintiff accompanying such demand with an offer to surrender the certificates; that the common council of said city has persistently refused to have the amounts of said certificates assessed upon the lands described therein and plaintiff has thus been prevented from collecting the same; and that, until after full performance of the contract on his part, plaintiff had no knowledge of the several failures of duty on the part of the city officers, which rendered the certificates invalid.
A demurrer to the complaint as not stating a cause of action was overruled, and defendant appealed from the order.
Order reversed and remanded.
C. J. Wiltse, for the appellant, contended, 1. That defendant's charter confers upon it in general terms the power to make contracts; that this authorized the city to make all such contracts as were necessary to effect the purposes for which the municipality was created (Hodges v. Buffalo, 2 Denio, 112; Dillon on M. C., 2d ed., § 648); and that one of these purposes was to put and keep the streets in a proper condition for travel, as appears by subd. 28, sec. 3, subch. V of the same act, which authorizes the common council "to lay out, make, open, keep in repair . . . any highways, streets, lanes and alleys," etc. 2. That the provision of the charter which declares that, "in no event, where work is ordered to be done at the expense of any lot or parcel of land, shall the city be held responsible," has no application to the issue made on this demurrer, because the complaint expressly negatives the idea that the work in this case was ordered to be done at the expense of any lot or parcel of land abutting or fronting on the street on which such work was done. 3. That the provision just cited is invalid, as an attempt to relieve a particular corporation from its liability under the general rule of law, in consequence of the negligent, fraudulent or otherwise unlawful acts of its officers or agents. Durkee v. Janesville, 28 Wis., 464; Hincks v. Milwaukee, 46 id., 559.
For the respondent, there was a brief by Jenkins & Boland, and oral argument by Mr. Jenkins.
According to the allegations of the complaint, it is very certain that the common council never took the steps prescribed by the city charter, which were essential to make the expense of grading, claying and graveling West street chargeable on the adjoining lots. The charter provides that every resolution for doing such work at the expense of the lots, on being introduced, shall be referred...
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