Koch v. City of Milwaukee

• Decision Date: 08 January 1895
• Citation: 62 N.W. 918,89 Wis. 220
• Parties: KOCH ET AL. v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

89 Wis. 220

62 N.W. 918

KOCH ET AL.

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

Jan. 8, 1895.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Henry C. Koch and others against the city of Milwaukee and others for an injunction. There was a judgment for defendants, and plaintiffs appeal. Affirmed.

The complaint charges: That divers persons therein named as defendants, constituting the library board and the museum board of the city of Milwaukee, acting as a joint body, and not as separate boards, advertised for plans and specifications for a building to be constructed for the use of the public library and the public museum of the city of Milwaukee, without any resolution having been passed by the common council providing for the erection of such building; and it was insisted that such joint action of the boards was not, in law, the action of either, but was merely the action of the individual members of the two boards, and had no binding force or efficacy whatever. That in response to the advertisements some 70 or 80 distinct sets of plans and specifications were submitted, and, pursuant to the terms of advertisement, 5 of these sets of plans were selected, with the aid of an expert architect employed for that purpose, as the 5 best sets, and among the sets thus selected were those of the plaintiffs and those of the defendants Ferry & Clas. That the members of said boards, still acting jointly, selected from these five sets the plans and specifications of Ferry & Clas as the plans and specifications according to which the building was to be constructed, and undertook to appoint them as architects and superintendents of it; and it is charged, upon information and belief, that the selection of the Ferry & Clas plans and specifications was collusive and corrupt. The plaintiffs sued in their capacity as citizens, electors, and taxpayers of the city, as well as on behalf of other electors and taxpayers thereof. It is alleged in the complaint that the persons submitting plans and specifications known as “First, Second, Third, Fourth, and Fifth Best” were to have each $500 for the same, and that the said Ferry & Clas were, in addition to $500, to have percentages on the cost of construction of the building, as superintendents, at the rates therein stated; that plaintiffs submitted plans and specifications included within the five best, but they were not adopted; that the amount of money promised to be paid by the said joint board to the said expert for examining said plans, and for the said five best plans, which included those adopted, and the percentage for superintending the building, would amount to upwards of $12,000, to be summarily disbursed out of the fund in the hands of the city treasurer belonging either to the public library or public museum fund, and to be disbursed on orders of the president and secretary of the board of trustees, respectively, countersigned by the city comptroller, out of funds then in the hands of the city treasurer. Upon this complaint an injunction was issued, restraining the members of the boards of trustees of the public library and public museum from taking any further steps or doing any act towards carrying into execution their purpose in selecting plans and specifications for a public library and museum building, and from adopting any of the plans and specifications submitted to them, either as a joint board or as individual members of either of the boards, and restraining the city of Milwaukee, its treasurer, comptroller, common council, and other officers, from paying any obligations incurred by said joint board on account of plans and specifications so solicited by them for said building, and from paying any person who might have acted as an expert in examining the plans for his services as such; and said city and its common council and all other officers thereof were forbidden to pass any resolution or take any action having for its purpose to validate, directly or indirectly, the proceedings, acts, or doings of the said joint board in respect to the matters aforesaid, and the defendants Ferry & Clas were forbidden to do any act or take any steps whatever towards the construction of the said building, and from using any of the designs, plans, or ideas embodied in the plans and specifications submitted by the plaintiffs, and from making any contract for the construction of the building. A motion was made to dissolve the injunction, but it was modified so as to restrain the city of Milwaukee, its common council, comptroller, and treasurer, from auditing, allowing, or paying, in whole or in part, any obligation incurred or attempted to be incurred by said joint board, or by the several boards of trustees of said museum and library, on account of the plans and specifications mentioned in the complaint, or on account of the services of the expert architect, upon the order of said boards, or either of them, or any of the officers of said boards, and in all other respects the injunction was dissolved. Subsequently the trustees of the public library and of the public museum transmitted to the common council the five sets of plans and specifications mentioned, and recommended the adoption of the plans and specifications of Ferry & Clas, and accompanied the same by a bill of the expenses incurred in the matter of procuring plans and specifications, amounting to about $3,000, including bills for advertising, entertaining the expert, and payment of $500 for each of the five sets of plans specified,...