Pembar, Inc. v. Knapp
| Decision Date | 31 October 1961 |
| Citation | 14 Wis.2d 527,111 N.W.2d 476 |
| Parties | PEMBAR, INC., a Wis. corporation, Appellant, v. Lloyd D. KNAPP, Comm'r. of Public Works, City of Milwaukee et al., Respondents, and Kuetemeyer Plumbling Co., Inc., et al., Respondents. KUETEMEYER PLUMBING CO., Inc., Plaintiff-Respondent, v. CITY OF MILWAUKEE, a Municipal corporation, et al., Defendants-Respondents, Zien Plumbing and Heating Co., a Wis. corporation, et al., Appellants. |
| Court | Wisconsin Supreme Court |
The trial court sustained a demurrer to the complaint of Pembar, Inc., in Case 83 and a demurrer to the cross-complaints of Zien Plumbing and Heating Company and Pembar, Inc., in Case 84. Pembar and Zien have appealed.
Both cases arise out of the following fact situation:
On June 1, 1960, the city of Milwaukee common council authorized the Museum Board and the Public Works Commissioner Lloyd Knapp to construct a new city museum. Knapp advertised publicly and both Zien and Kuetemeyer submitted bids for work on the heating, plumbing and airconditioning of the proposed building.
Zien Plumbing and Heating Company's bid was the lowest: $593,333 as a base, and $640,541 as an alternate bid which included a fallout shelter. Kuetemeyer Plumbing Company's original bid was a base of $602,474 and an alternate of $641,974 with the fallout shelter. Kuetemeyer, however, discovered an error in its bid on the price of electric airfilters. It submitted a substitute bid which reduced its total to $634,474, including the fallout shelter.
Commissioner Knapp recommended by letter that Zien's bid be accepted and Kuetemeyer's substitute bid be rejected. The letter also states that the Milwaukee city attorney gave an opinion that the substitute bid of Kuetemeyer was invalid.
The Museum Board awarded the contract to Kuetemeyer on a price basis of $634,474, and the work was commenced on the contract.
In Case No. 83, Pembar, Inc., a Milwaukee corporation, brought a taxpayer's suit against the city of Milwaukee, the Commissioner of Public Works, the Public Museum Board of Trustees and Kuetemeyer Plumbing Company.
The suit seeks declaratory judgment pursuant to sec. 269.56, Stats., on questions of whether the Museum Board or the Commissioner of Public Works has authority to accept bids and execute a contract for construction of a new museum building. The suit also sought to determine which of two heating and ventilating firms submitted the lowest bid. Defendants' demurrer was sustained on the basis that the complaint did not state facts sufficient to constitute a cause of action.
In Case No. 84, Kuetemeyer Plumbing Company (defendant in Case No. 83) seeks declaratory relief against the other parties named as defendants in Case No. 83 in addition to Pembar, Inc. and Zien Plumbing and Heating Company. Kuetemeyer also sought to have the same determination as Pembar did in Case No. 83.
Defendants Zien Plumbing and Heating Company and Pembar, Inc., answered and counterclaimed for declaratory judgment in Case No. 84. These counterclaims were substantially similar to the complaint of Pembar in suit No. 83. Kuetemeyer Plumbing Company demurred to these counterclaims and the demurrer was sustained. Motions by Pembar and Zien, in both cases, for rehearing and leave to amend were denied.
These two actions were consolidated for trial by the Milwaukee county circuit court.
Further facts will be given in the opinion.
Philip W. Croen, Milwaukee, Edward S. Grodin, Milwaukee, of counsel, for appellants.
Quarles, Herriott & Clemons, Milwaukee, for respondent Kuetemeyer Plumbing Co., Inc.
John J. Fleming, City Atty., Milwaukee, James C. Mallien and George A. Bowman, Jr., Milwaukee, of counsel, for respondents City of Milwaukee, Board of Trustees of Public Museum and Knapp.
Both cases present these issues:
(1) Does the Milwaukee Museum Board have authority to execute public improvement contracts for the erection and construction of a new city museum?
(2) If so, is the Board required to let such contracts under competitive bidding?
(3) Once the Board authorized advertising for bids is it bound to award the contract on the basis of such bids? The advertisement did not represent that the lowest responsible bidder would be awarded the contract.
In considering the question of the requirement for competitive bidding and the respective powers of the Museum Board and the city Commissioner of Public Works to authorize such bidding, the following statutes and city ordinances are applicable.
Sec. 43.35, Stats. (sec. 18.01, Milwaukee City Charter), authorizes the city to establish and maintain a public museum. Sec. 43.36, Stats. (18.02, Milwaukee City Charter), provides for the appointment of a board of trustees to administer the museum. Sec. 43.39, Stats., provides for disbursement of museum funds and also requires that all monies appropriated for museum purposes shall be paid to the city treasurer and credited to the museum fund.
Sec. 43.41(1), Stats. (18.07, Milwaukee City Charter), provides:
Further applicable sections will be cited in the discussion.
Appellants take the position that the Museum Board is without authority to enter into construction contracts for a city museum. Their theory is that such power resides only in the Commissioner of Public Works citing Koch v. City of Milwaukee, 1895, 89 Wis. 220, 62 N.W. 918, in support of this contention. This case did hold that the Milwaukee common council is the only body with original power to erect and construct the public library-museum, though the council may ratify the unauthorized acts of others. However, the trial court held that the laws affecting the Museum Board have so changed since 1895 as to overturn the rationale of Koch with respect to the power of the Museum Board. Appellants point out that Koch was cited with approval in Ellerbe & Co. v. City of Hudson, 1957, 1 Wis.2d 148, 83 N.W.2d 700, 85 N.W.2d 663. Our approval was limited to the Koch statement pertaining to ratification and was not on grounds applicable to this controversy.
Respondents cite certain statutes passed after Koch v. City of Milwaukee, supra, such as ch. 41, Laws of 1895, and its later version ch. 452, Laws of 1921. These statutes took the place of ch. 93, Laws of 1891, which governed the Koch case. In the later statutes, the legislature vested a board of trustees of institutions with the power of erecting buildings for the use and accommodation of the institution. This is now sec. 43.41, Stats. Thus, the Koch case is not applicable here.
Appellants also cite sec. 7.17 of the Milwaukee City Charter to support their contention that the Commissioner of Public Works has authority to erect a public museum. As amended by Ordinance 112, sec. 7.17 provides:
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...(1951), 409 Ill. 438, 100 N.E.2d 591; People ex rel. Adamowski v. Daley (1959), 22 Ill.App.2d 87, 159 N.E.2d 18; Pembar, Inc. v. Knapp (1961), 14 Wis.2d 527, 111 N.W.2d 476 and Connelly v. City of Elmira (1932), 258 N.Y.S. 603, 144 Misc. 282. These cases collectively state that: (1) the sub......
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Menzl v. City of Milwaukee
...contractor is given a vested right to a share of the proceeds equal to the contractual price of his services. In Pembar, Inc. v. Knapp (1961), 14 Wis.2d 527, 534, 111 N.W.2d 476, we held that separate museum funds were not city funds since they were not under control of the common council. ......