Kilvington v. City of Superior

• Decision Date: 25 October 1892
• Parties: KILVINGTON ET AL. v. CITY OF SUPERIOR.
• Court: Wisconsin Supreme Court

83 Wis. 222

53 N.W. 487

KILVINGTON ET AL.

v.CITY OF SUPERIOR.

Supreme Court of Wisconsin.

Oct. 25, 1892.

Appeal from circuit court, Douglas county; R. D. MARSHALL, Judge.

Action by S. S. Kilvington and Michael Paden against the city of Superior. A demurrer to the complaint was overruled. Defendant appeals. Affirmed.

The other facts fully appear in the following statement by PINNEY, J.:

This action was brought upon a contract made between one McCann and the village of Superior, organized under chapter 40 of the Revised Statutes and acts amendatory thereof, for the erection of a crematory according to the Kilvington patent for the destruction of garbage, dead animals, etc. The work was let to the lowest bidder, but prior thereto Kilvington, the owner of the patent for building the crematory, appeared before the village board while in session, and agreed he would allow it and its legal successor the use of his patent and improvements as long as it should be operated by it for a total sum of $1,500, and he would superintend the construction if they would pay his expenses to Superior and while there superintending the work; also that any contractor who took the contract of erecting the crematory could have his said patent and services at the same rate; that such facts were generally known and publicly stated both before the board and throughout the village, and were generally known among contractors in that kind of work. McCann, having been the successful bidder, entered into contract to build the crematory according to said patent and improvements for $4,500, upon premises to be designated by the village. On the day of making the contract Kilvington entered into a contract with McCann to furnish the patent, render services, and superintend the erection of the crematory for the sum of $1,500, as he had promised. A place for erecting it was designated, and the work was commenced. The city of Superior was organized in the year 1889, and succeeded to all the liabilities and rights of the village. McCann continued the work until the 22d of April, 1889, and was willing to go on with it, but the board of public works refused to permit him to proceed to complete the contract; and he had expended and become liable for $2,091.39, and his profits on the completion of it would have been $900. He assigned over his claim against the city on said contract to the respondents, Kilvington and Paden, and they presented it to the common council, when it was disallowed, and the respondents appealed to the circuit court, where they filed a formal complaint on the said contract, and claimed damages, as above stated. The defendant demurred to the complaint. The court overruled the demurrer, and the city appealed to this court, and claimed (1) that the contract was void, on the ground that the village board had no power, express or implied, to contract for the erection of a garbage crematory; (2) that, if it had such power, then the work of building it according to the Kilvington patent could not be let to the lowest bidder in the mode prescribed by law, because it was a patented method, and could not be the subject of competition in bidding for the work.Phil H. Perkins, for appellant.

Reed, Grace, Rock & Reed, for respondents.

PINNEY, J., ( after stating the facts.)

The village of Superior was a public corporation created for purposes of local civil government. All its powers “not specifically given some other officer” were vested in its village board. The contract, for a breach of which this action is brought against the city of Superior, the successor in interest and liability of the village, was entered into by and between the board of trustees of the village of Superior and McCann, the assignor of the plaintiff, for the construction, at a designated place, of a furnace known as the “Eagle Garbage Cremating Furnace,” with Kilvington improvements, and all processes for consuming by fire, manure, garbage, and dead animals, as a means of conserving the health of the city, and of abating nuisances, and preventing sickness and disease. The authority of the village to make the contract is denied. It is urged that the village board had no power, express or implied, for that purpose. Aside from what may be fairly considered within the general powers of the village to carry out the public purposes for which it was created, the village board had express power “to appoint a board of health, * * * to declare what are nuisances, and to prevent or abate the same; * * * and to prevent persons from bringing, depositing, or leaving within the village any putrid carcass or other unwholesome substance; to require the owners or occupants of lands to remove dead animals, stagnant water, or other unwholesome substance from their premises;” and “to ordain and establish all such ordinances and by-laws for the government and good order of the village * * * and the promotion of health, not inconsistent with the constitution and laws of the United States or of this state, as they shall deem expedient.” Rev. St. § 892, subds. 20, 26. The powers vested by subdivision 26 were to be exercised by ordinances and by-laws, and, being for the enactment of general and permanent rules, cannot, it is contended, (and many authorities are cited to that effect,) be exercised in any other manner; while the powers conferred by subdivision 20 may be exercised “by ordinance, resolution, law, or vote.” Section 892. The power “to prevent or abate nuisances”--that which occasions public hurt or inconvenience--is necessarily a very broad and comprehensive one, and essential, if not indispensable, to the purpose for which the village was created. It would hardly be questioned by any one that if garbage, manure, or dead animals were found within the village, in the interest of good...