Journal Printing Co. v. City of Racine

• Decision Date: 10 January 1933
• Parties: JOURNAL PRINTING CO. v. CITY OF RACINE ET AL.
• Court: Wisconsin Supreme Court

210 Wis. 222

246 N.W. 425

JOURNAL PRINTING CO.

v.CITY OF RACINE ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1933.

Appeal from an order of the Circuit Court for Racine County; C. M. Davison, Circuit Judge.

Action by the Journal Printing Company against the City of Racine and others. From an order sustaining demurrer to amended complaint, plaintiff appeals.--[By Editorial Staff.]

Affirmed.

Action commenced January 23, 1931, against the city of Racine to recover on quantum meruit for printing done for the city by the plaintiff as the publisher of the “Official Newspaper.”From an order entered May 24, 1932, sustaining a demurrer to the amended complaint, the plaintiff appeals.Beck, Smith & Heft, of Racine, for appellant.

Cornelius Colbert, of Racine, for respondents.

FOWLER, J.

The case is before the court upon appeal from an order of the circuit court of Racine county sustaining a demurrer to an amended complaint which alleges that the city engaged the plaintiff to print the common council proceedings and do miscellaneous advertising and furnish pamphlets of the council proceedings in accordance with a custom of ten or twelve years' duration; that the plaintiff began performing the service; that it performed such services from May 23 to December 5, 1930, which were reasonably worth $2,905.55, of which only $455.90 was paid; and that the city refuses to make any further payments. Judgment is demanded for $2,449.65.

The matter of the publication of the council proceedings and doing the city advertising is governed by statute. Section 62.10, Stats., provides for advertising for bids containing separate proposals to publish the proceedings and doing the advertising and that the successful bidder shall execute a contract and file such bond as the council shall require; that no paper shall receive more or less than the contract price nor any other compensation for the work; and that “the paper securing the contract * * * shall be the official city newspaper.” Sections 62.09(10) and 62.15(12) designate how all contracts of the city shall be executed and countersigned. Section 62.11(3)(d) provides that an “aye” and “nay” vote shall be taken on any measure creating a liability. Section 331.25 fixes the maximum legal rate for publishing any notice or advertisement required to be published by law at not over $1 per folio for the first insertion and $.70 for any subsequent insertion.

[1][2] We must take judicial notice of these statutes. It seems plain that when the statutes require specified legal steps to be taken or formalities to be followed in the making of a municipal contract, there must be an allegation that these steps have been taken and these formalities followed in order to allege the creation of a contract, even though as between individuals an allegation that one engaged another to perform services and that he performed them would state a cause of action for recovery of their reasonable value. Many Wisconsin decisions support this view. They go to the extent of preventing recovery for construction of buildings, pavements, schoolhouses, bridges, and other public improvements when statutory provisions like those here involved are ignored. Hoeppner-Bartlett Co. v. City of Rhinelander, 142 Wis. 229, 125 N. W. 454;Chippewa Bridge Co. v. Durand, 122 Wis. 85, 99 N. W. 603, 106 Am. St. Rep. 931;MacLeod v. Washburn, 178 Wis. 379, 190 N. W. 124;Lee v. City of Racine, 64 Wis. 231, 25 N. W. 33;School District v. Industrial Commission, 194 Wis. 342, 216 N. W. 844;Appleton Waterworks v. Appleton, 132 Wis. 563, 113 N. W. 44;Harris v. Joint School District, 202 Wis. 519, 233 N. W. 97;Neacy v. Milwaukee, 171 Wis. 311, 176 N. W. 871. In Wagner v. Milwaukee, 196 Wis. 328, 220 N. W. 207, 208, the payment for publication of council proceedings “without the intervention of a formal contract” was enjoined.

The appellant seeks to avoid the effect of these decisions by saying that they go upon the idea of preventing fraudulent violation of statutory requirements and do not cover innocent and harmless failure to follow them, and that as here no injury resulted to the city through the ignoring of statutory requirements, recovery for the reasonable value of the services of which the city has received the benefit should be allowed. This ignores the provision of section 62.10 that no paper shall receive more or less than the contract price fixed by competitive bidding, and ignores failure to allege that the reasonable value is within the maximum price for official publications fixed by section 331.25. But passing these points the cases relied upon by appellant do not support its...