Neacy v. Drew

• Decision Date: 14 March 1922
• Citation: 176 Wis. 348,187 N.W. 218
• Parties: NEACY v. DREW, CITY TREASURER, ET AL.
• Court: Wisconsin Supreme Court

176 Wis. 348

187 N.W. 218

NEACY

v.DREW, CITY TREASURER, ET AL.

Supreme Court of Wisconsin.

March 14, 1922.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by Thomas J. Neacy against John I. Drew, City Treasurer of the City of Milwaukee, and others. From an order sustaining a demurrer of one of the defendants to the complaint, plaintiff appeals. Reversed with directions.Paul D. Carpenter, W. H. Timlin, Jr., and Timlin & Dean, all of Milwaukee, for appellant.

John M. Niven, City Atty., and Charles W. Babcock, Asst. City Atty., both of Milwaukee, for respondents.

Quarles, Spence & Quarles, of Milwaukee (J. V. Quarles, of Milwaukee, of counsel), for Universal Concrete Products Co.

DOERFLER, J.

This is an appeal from an order of the circuit court for Milwaukee county, Hon. Lawrence W. Halsey, judge, sustaining the demurrer of the defendant, Universal Concrete Products Company, to the complaint.

The action is one brought by the plaintiff as a resident and taxpayer of the city of Milwaukee, on his own behalf and on behalf of all others similarly situated, to recover from the defendants, for the benefit of said city, the sum of $155,204.62, with interest, such sum representing the amount paid by the city of Milwaukee, through its officers, to the defendant Universal Concrete Products Company, on a certain contract entered into between said city of Milwaukee and said Products Company, which contract is alleged in the complaint as being void, for reasons therein specified.

The defendant Products Company demurred to the complaint, first, upon the ground that the same does not state facts sufficient to constitute a cause of action, and, second, that two causes of action have been improperly united; the second ground for the demurrer being based upon the prayer for relief in the complaint that attorney's fees be allowed and paid to the plaintiff out of the fund recovered.

On May 4, 1920, a decision of this court was handed down in Neacy v. City of Milwaukee et al., reported in 171 Wis. 311, 176 N. W. 871, that action being based upon substantially the same facts and allegations as are contained in the present action, with the exception that other parties have been added as defendants in this action, and that the relief prayed for in the reported case was for an injunction restraining the defendant city and its officers from paying out any of the city's moneys on the contract therein referred to, for the reason that the contract was void, and was illegally let, while in the instant action judgment is prayed for, for the benefit of the city of Milwaukee, for a recovery of all moneys paid out by the city of Milwaukee on such illegal contract, with interest, etc. In the reported case referred to, it was in substance held by this court that the alleged contract therein referred to was void, because, first, in the letting of said contract, the commissioner of public works exceeded his authority, because such commissioner exercised power which properly vested in the common council of said city; second, because the contract as let violated the charter of the city of Milwaukee, in that the article to be furnished under the provisions of the contract was an article capable of being manufactured only by patented machines, and because the provisions of section 23, c. V, of the city charter were not complied with; and, third, because in the letting of said contract there was no competition, as is required by the provisions of said city charter.

The action in the reported case was commenced on the 6th day of April, 1917, and, a temporary restraining order having been issued, such order was by the circuit court, on June 11, 1917, vacated. The action having come on for trial before the circuit court in the fall of 1918, judgment was entered on December 4 of that year, dismissing plaintiff's complaint, with costs, and an appeal was thereupon taken from such judgment to this court, which appeal was placed upon the August term, 1919, calendar of this court, and heard and determined as hereinbefore stated.

Shortly after the decision in the case reported in 171 Wis., at a special session of the Legislature, c. 10 of the laws of Wisconsin was passed (Laws 1920), which act is as follows:

“An act to create section 925--91a of the Statutes, validating certain contracts.

The people of the state of Wisconsin, represented in Senate and Assembly, do enact as follows:

Section 1. There is added to the statutes a new section, to read: Section 925--91a. Any contract for the purchase of concrete posts or poles in connection with the municipal lighting system of any city of the first class, however incorporated, which has been entered into prior to September 23, 1916, upon which payments have been made and satisfactory material delivered, and such posts or poles are made by machine covered by patent, which contract has, prior to the first day of May, 1920, been declared invalid due to failure of any such city or its officers to comply with sections 925--90 to 925--91 of the statutes, inclusive, or provisions of the special charter of any such city relating thereto, shall be and hereby is made valid and all payments previously made thereunder or thereafter to be made thereunder are declared valid and binding on any such city and its officers, any provisions of the charter of any such city, or of the statutes notwithstanding.

Sec. 2. This act shall take effect upon passage and publication.”

Immediately after the passage of said legislative act, the defendants received notice that the plaintiff considered said act unconstitutional, and that he would challenge the constitutionality of such act, and thereupon the said city, with the consent of the defendant company, canceled the unfinished portion of the contract.

[1] On the part of the plaintiff it is contended that the above curative act is unconstitutional, because at all times mentioned in the complaint the city of Milwaukee was and is the only city of the first class in the state of Wisconsin, and because the act applies only to the city of Milwaukee, and can never apply to any other city, and that it therefore violates sections 31 and 32 of article 4 of the Constitution of the state. The constitutional issue raised with respect to chapter 10, aforesaid, has been repeatedly before this court in cases involving legislative acts similar to chapter 10 aforesaid, and it has been uniformly held that such legislation is unconstitutional--violative of the constitutional provisions above referred to--because it is special legislation. Johnson v. City of Milwaukee, 88 Wis. 386, 60 N. W. 270;Boyd v. City of Milwaukee, 92 Wis. 456, 465, 66 N. W. 603;Cawker v. Central B. P. Co., 140 Wis. 25, 121 N. W. 888.

In Cawker v. Cent. B. P. Co., 140 Wis. 25, 121 N. W. 888, the constitutionality of chapter 677 of the laws of 1907, an alleged curative statute, and similar in all respects to chapter 10, was challenged. The act involved among other things provided:

“In all cases where any municipal corporation of the first class in this state shall have heretofore entered into any contract or contracts with any person, firm or corporation for the construction of any pavement, or pavements, which contract or contracts are illegal, because requiring the use of patented materials in whole or in part,” etc.

The balance of the act contains the curative portion thereof, similar in all respects to chapter 10, above referred to.

In the decision of the court Justice Timlin, writing the opinion, says:

“The Constitution of this state * * * forbids the enactment of any special law to amend the charter of a city, and requires the Legislalature to provide general laws for ‘the transaction of any business' thus prohibited, and requires that such general laws be uniform in their operation throughout the state. * * * Milwaukee is the only city which now is, or which ever in the past has been, in this first class according to legislative classification by population. The act, relating wholly to past conditions, is therefore special, as much so as if the city of Milwaukee were expressly named therein. Boyd v. Milwaukee, 92 Wis. 456, 66 N. W. 603. * * * We must hold that the curative statute in question is unconstitutional and void.”

Chapter 10, therefore, under the decisions aforesaid, clearly violates the constitutional provisions above referred to, and we thereforehold such statute as unconstitutional and void.

[2] Counsel for the Products Company in it brief contends that, inasmuch as the common council by a resolution canceled the contract with the Products Company after it had received notice that this court had held it invalid, by such cancellation it ratified the contract up to the time of the cancellation, and that the council had ample authority to ratify such contract, pursuant to the provisions of section 959w, Wis. Stats., which reads as follows:

“The Common Council of any city, however incorporated, is authorized and empowered to ratify, validate and confirm by a majority vote of the members thereof, any contract, either written or oral, heretofore entered into or purported to be entered into by any officer or department of such city in the forming of which the proper proceedings may not have been regularly taken; provided, that the other contracting party has performed his share of said contract; and that such contract was one which the Common Council had authority to authorize; and the Common Council of any such city is authorized and empowered to ratify, validate and confirm all proceedings in relation thereto, and when so ratified and confirmed the obligation of such contract shall be as binding to all intents and purposes as if such contract had been regularly entered into.”

Assuming that said section 959w, Wis. Stats., is in all respects a valid statute, it has no application to the issues involved in this action, for the reason that such statute provides for a ratification,...