Herman v. City of Oconto
| Decision Date | 20 June 1901 |
| Parties | HERMAN v. CITY OF OCONTO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Sheboygan county; Michael Kirwan, Judge.
Action by Henry Herman against the city of Oconto. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Modified.
The facts in this case are quite fully stated on the former appeal (100 Wis. 391, 76 N. W. 364), where it was held that the complaint stated a good cause of action, and that the answer was sufficiently definite to permit the introduction of evidence in relation to the issue of fraud, bribery, and corruption therein presented. A second trial was had. By stipulation the complaint was amended to the effect that, after the contract in suit was made, the plaintiff agreed with Turner to make advances for carrying on the work; that, after the work had been partially done, Turner's interest was sold to plaintiff, and notice given defendant; that plaintiff was induced to make advances and to complete the work on the faith that the contract had been fairly let; and that he had no knowledge of any claim that it had been obtained by any improper means. The answer was also amended, setting up a contract between the city and the Oconto Water Company for a water supply, continuing for 30 years from July 9, 1890, at an annual rental of $6,500 for one hundred hydrants, and $50 a year for additional hydrants. It also alleged that on January 1, 1894, the city borrowed from the state $35,000, payable, with interest, in 20 years, at the rate of $1,750 and at the time the contract was made, October 22, 1894, there was interest accrued thereon, and payable January 1st thereafter, amounting to $1,750. It also alleged other indebtedness of the city as follows: Electric light company, $4,014.50; city hall and engine house bonds, $3,000; current expense and city orders, $10,000; other state, county, etc., indebtedness, $5,000,--making the total indebtedness of the city over $65,000, which was in excess of the 5 per cent. limit. The place of trial was changed to Sheboygan county. At the trial a further amendment was made to the answer, to the effect that at the time the said contract was made no tax levy was made to discharge the indebtedness thereby created, as required by section 3, art. 11, of the constitution; that the city was without funds; and that the city had no power under the charter to incur such indebtedness under its charter. It was agreed that the only issue that should be submitted to the jury was the one that arose upon the allegations of the answer relative to Turner's securing the contract by improper means; the other issues to be determined by the court. Pursuant to this arrangement, the jury rendered the following special verdict:
The court rendered a lengthy written decision, and made findings showing the city's assets and liabilities at the date of the contract as follows:
As regards the first item mentioned, the court found that said sum was borrowed from the state on April 6, 1894, and that it was payable in 20 annual installments, of $1,750, with 5 per cent. interest in addition, on January 1st of each year; that the city received said sum on May 31, 1894, less the advance interest up to January 1, 1895, and that it was borrowed for the purpose of building a high-school building; that on October 31, 1894, there was yet in the high-school building fund $21,433.34; and that the building was then in the course of erection. No proof was offered and no finding made as to any contract relative to the erection of the high-school building, or of its probable cost. As regards the city hall and engine house bonds, the court found there were outstanding bonds amounting to $3,000, of which $2,000 became due, with 6 per cent. interest, August 18, 1895, and $1,000 and interest August 1, 1896. The interest had been paid to August 1, 1894. In his computation of indebtedness, the court included interest earned, but not due, on the bonds, to the date of the contract, amounting to $30. The evidence showed total outstanding city orders, $4,100. The court disallowed orders amounting to $91, as being void, having been issued for an unauthorized purpose. The court found that in August, 1893, the city made a contract with the electric light company to light the city for three years at a stated price per light, payable at the end of each month. The sum above mentioned is the amount of the bills for lighting for October and November, 1894. As regards the Shaw indebtedness, it appears that the city owed him $75 for services. Early in October the city entered into a contract with him to superintend the construction of the sewer to be built, and was to pay him for the time so engaged at the rate of $1,600 per year, at the end of each month. He began work November 1st, and the $133.33 above mentioned is for his services for November. Under the contract in suit, the total amount of the work, at the price agreed upon, was $18,099.66. At the close of the work the next year there had been some delay, and under the terms of the contract the city made a deduction at the time of settlement of $776.65 as liquidated damages. The court found the amount of the indebtedness created by the contract of October 22d to be the difference between these two sums. At the time the contract was entered into, the city was under contract, by ordinance, with the Oconto Water Company, for a water supply, running 30 years from July 9, 1890, at an annual hydrant rental of $6,900, payable January 1st and July 1st of each year. All installments had been paid up to July 1, 1894. The ordinance provided that payments should be met by a direct annual tax. The court found that the city was not then indebted under said contract. It further appears in the case that the city was under contract with divers teachers of its public schools for a period of 10 months, beginning September 1, 1894, the monthly pay roll therefor being $920. All wages had been paid up to the time the sewer contract was entered into, and there was over $1,600 yet left in the school fund. The court found no indebtedness under this contract. The value of the taxable property of the city, upon which the computation of the limit of indebtedness must be based, was found to be $1,213,755. At the time the sewer contract was entered into, no provision for the collection of a direct annual tax to pay the liability thereby created was made. Upon the findings so made, the court directed judgment for plaintiff. Both parties filed numerous exceptions. A motion by defendant for judgment, and, if denied, for a new trial, was denied, and from the judgment entered on the verdict and findings the defendant has taken this appeal.
P. H. Lynch and Wigman & Martin, for appellant.
Hoyt & Olwell and Greene, Vroman, Fairchild, North & Parker, for respondent.
BARDEEN, J. (after stating the facts).
We desire to enter our earnest protest against the printed case in this action. It is inexcusably long. It is padded with matter entirely foreign and unnecessary to an understanding of the questions presented for decision. The judge's charge, findings, and exceptions are printed twice. Nearly 30 pages of exhibits to the complaint are printed in full; numerous bonds, orders, stipulations, and proceedings on the former trial are set out at length; and yet no question is raised as to any of them. Five pages are taken up with...
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...Stedman v. Berlin, 97 Wis. 505, 73 N. W. 57. The absolute liability was not contingent upon some future occurrence, as in Herman v. Oconto, 110 Wis. 660, 86 N. W. 681;Town of Vaughan v. Town of Montreal, 124 Wis. 302, 102 N. W. 561. Payment was not made dependable upon particular funds, as ......
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...Am. St. Rep. 52; Hull v. Ames, 26 Wash. 272, 66 P. 391, 90 Am. St. Rep. 743; Gladwin v. Ames, 30 Wash. 608, 71 P. 189; Herman v. City of Oconto, 110 Wis. 660, 86 N.W. 681. ¶7 It must be noted, however, that the authorities recognize a distinction in the character of the obligation incurred,......
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...future, is not to be considered in its total amount as an indebtedness of the municipality in any one year. Herman v. City of Oconto (1901), 110 Wis. 660, 86 N.W. 681. See also Stedman v. Berlin (1897), 97 Wis. 505, 73 N.W. The computations used by the plaintiffs for the amount of prior ser......
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