Mueller v. Eau Claire Cnty.

• Decision Date: 07 December 1900
• Citation: 84 N.W. 430,108 Wis. 304
• Parties: MUELLER ET AL. v. EAU CLAIRE COUNTY ET AL.
• Court: Wisconsin Supreme Court

108 Wis. 304

84 N.W. 430

MUELLER ET AL.

v.EAU CLAIRE COUNTY ET AL.

Supreme Court of Wisconsin.

Dec. 7, 1900.

Appeal from circuit court, Eau Claire county; James O'Neill, Judge.

Application for injunction by L. J. Mueller and others against Eau Claire county and others. From a judgment in favor of the defendants, plaintiffs appeal. Reversed.

The plaintiffs, Stockwell and Van Hovenberg, are residents and taxpayers of the county of Eau Claire, and bring this action on behalf of themselves and other taxpayers. They join with them L. J. Mueller, who was the lowest bidder for the work hereinafter mentioned, but is admitted not to be a necessary party. The defendants are Eau Claire county, W. H. Hobbs, the contractor, and certain members of the county board of supervisors, who had charge of the erection of a county asylum for the chronic insane. The complaint sets out that the county had decided to erect a building for that purpose; the appointment of the committee, who had secured plans and specifications for the building, and another set for the heating apparatus to be used therein; the advertisement for bids for the erection of the building and for separate bids for the heating plant. It then details the requirements of the notice for bids, and compliance therewith by the plaintiff Mueller; that the contract for the erection of the building was awarded to one Long; that plaintiff Mueller offered to put in the heating plant for $6,172, which was the lowest bid. He notified the committee of his readiness to enter into a contract and furnish the required bond, but the committee rejected his bid, and accepted the bid of the defendant Hobbs, whose bid was $6,175, and entered into a written contract with him. The complaint further stated that the acts of defendants were attempted to be performed under sections 603, 604, Rev. St. 1898, and that the letting of the contract to Hobbs was in violation of section 604; that their rejection of Mueller's bid was without any cause or reason, except that the committee desired to favor Hobbs, and give him an unlawful preference, and that the defendants threatened to carry out such unlawful contract. A temporary and permanent injunction was prayed for. To this complaint the defendants made answer which substantially admits the allegations of the complaint with reference to the erection of the building, reception of bids, and letting of contracts. It then sets out the bids of Mueller and Hobbs, and as a reason for accepting the bid of the latter it alleges, in substance, as follows: Mueller lived at Milwaukee, 250 miles from Eau Claire. He was wholly unknown to the committee. Hobbs was a resident of Eau Claire, and well known to the committee, and for many years had been engaged in doing similar work, and was known to be responsible and of ability to perform such work. The committee believed it was probable that, as the work progressed, changes might be necessary in some of the details of the work, and that such matters could be more easily arranged with a contractor who was close to the place of the work, and who, it was supposed, would give his personal attention to it. The committee further realized the fact that an act of incompetency or unfaithfulness in the performance of the work might bring losses to the county, “which in comparison would dwarf into absolute insignificance (if it is not already so) the sum complained of”; that in jobs of this kind defects were likely to occur which might not be discovered as the work progressed, or until the plant was in active use, and which could be more readily remedied by a contractor near at home; that, in case of repairs, they could be more readily and cheaply obtained from the person who constructed the work. Reference was made to certain provisions of the contract to the effect that the drawings, plans, and specifications were intended to co-operate, and that work mentioned in one and not in the other was to be executed as though mentioned in both, without extra charge. Questions would constantly arise with reference to such matters which made it essential that the contractor should be on the ground so they could be arranged as the work progressed, and the committee believed better and more satisfactory results could be obtained in the adjustment of such matters with the defendant Hobbs, by reason of their knowledge of his business methods, than could be obtained from Mueller, whom they did not know. The answer then alleged that the other plaintiffs were only assessed to the amount of $400 in property in the county, and that the additional tax they would be required to pay would be only the fractional part of a mill; that Hobbs had paid to the county treasurer the sum of $3 to be applied on the contract. To this answer the plaintiffs demurred, on the ground that it did not state facts sufficient to constitute a defense. On the hearing it was urged that the complaint did not state a cause of action. The court so found, and sustained the demurrer to the complaint. From the order so entered the plaintiffs have taken this appeal.Wickham & Farr, for appellants.

De Alton S. Thomas and W. F. Bailey, for defendant Hobbs.

BARDEEN, J. (after stating the facts).

The defendant county was proceeding to erect its asylum under and by virtue of the authority conferred upon it by sections 603, 604, Rev. St. 1898. Section 604 provides that, before proceeding to the construction of such buildings, the county shall prepare plans and specifications thereof, which shall be submitted to, and approved by, the board of control. After such approval, the county board may adopt the same, “and proceed to contract for the construction of said buildings, with the lowest bidder or bidders, for all the work and material required therefor.” The complaint alleges and the answer admits that, with reference to the heating plant for said asylum, the plaintiff Mueller was the lowest bidder, and that the county had let the contract therefor to the defendant Hobbs, whose bid was $3 in excess of Mueller's. One reason urged by the...