Ricketson v. City of Milwaukee

• Decision Date: 02 February 1900
• Citation: 81 N.W. 864,105 Wis. 591
• Parties: RICKETSON v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

105 Wis. 591

81 N.W. 864

RICKETSON

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

Feb. 2, 1900.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by James R. Ricketson against the city of Milwaukee and others. From an order denying a motion to vacate a restraining order, defendant city appeals. Affirmed.

This action is brought by the plaintiff, a resident and taxpayer of the city of Milwaukee, to restrain the city, its board of public works, and other officers, and the Engel Sanitary & Cremation Company from constructing a garbage crematory at the expense of the city. Upon the complaint and affidavit of one Vincent, a restraining order was made. The complaint, among other things, alleged that on June 5, 1899, the council adopted a resolution directing the board of public works to advertise for proposals to furnish the city, ready for operation, with a suitable garbage crematory, including all necessary buildings, which shall be of brick, with stone foundations and iron roof, for the incineration of all garbage within the limits of the city, together with the right to use all patents which may be necessary for the complete operation of the same. Such bids or proposals were to be for buildings and equipments suitable for the reduction and disposal of 100 tons of garbage each 24 hours. The buildings were to be located on lands owned by the city, near the sewerage pumping works. The bidder was to specify the system of incineration to be employed by him, the size, dimensions, and manner of construction of the building and plant, the number of tons of fuel required for the disposal per ton of garbage, and the number of men necessary for its operation. If possible, it was to be so located as to use the smokestack of the sewerage pumping works, and was to be so located in connection with said works as the city engineer should decide to be economical in the operation of both plants according to specifications to be prepared by him. The resolution also provided that, in addition to the charter requirements, the contract and specifications should require: (1) A guaranty that the plant, when completed, would do the work required in a sanitary manner, without emitting any unwholesome or offensive odors. (2) That the city should have a right to test it for 60 days. (3) If the city decided to accept the plant, the bidder was to give a bond of $10,000, conditioned that it should do the work properly for one year. (4) A conveyance to the city of the right to use all patents applied for, pending or issued, covering the plant and methods of operating the same. (5) An agreement that, if not accepted, the contractor would remove the plant. (6) That no payment should be made until the work had been tested and accepted. (7) Such further provisions as the board of public works and city engineer might require. The resolution further provided that the board of public works and committee on health should be empowered to select the lowest and best bidder, all things considered; but before making a contract they were to report their conclusion to the council for approval. An appropriation, not exceeding $60,000, was made to meet the expense. Pursuant to this resolution, the board of public works prepared some general specifications, a copy of which is attached to the complaint. No plans of any kind were prepared. The specifications covered the requirements of the resolution, but left it for the bidders to submit plans and specifications showing a description of the buildings, machinery, furnaces, and appurtenances. Nothing was said as to the size or dimension of the buildings, or of any of the rooms therein, or of the finish of the same, except that the buildings were to be of brick, with iron or slate roof, and as nearly fireproof as possible. No specifications as to machinery were included, except that it was stated that the furnaces were to be of such a number as to permit the cremation of 100 tons of garbage per day, delivered in scows at the dock in front of the plant three times a day. Proper trainways were to be built, with a traveling crane for each furnace. A coal shed was to be erected of capacity to store six months' necessary supply of coal. The smokestack was to be of ample capacity and height for the best draft necessary. If the stack of the sewerage pumping works was of sufficient height and capacity in connection with the boilers of said works, or if the heat from the cremation furnaces can be used for generating steam at the necessary pressure in the boilers at the pumping works, the present stack, with the approval of the board, may be used, and the flue connected with the boiler furnace. The plant was to be so designed as to make the handling of garbage and the receiving of coal by vessel convenient and economical, and must be complete in every respect, and of first-class material. Due advertisement was made by the board, and bids received as follows: Dixon Garbage Crematory Company, $51,000; Davis Garbage Furnace Company, $53,000; Davis Garbage Furnace Company, $56,000; Jacobi Company, $57,000; Engel Sanitary & Cremation Company, $57,800; Davis Garbage Furnace Company, $68,000; Duke & Kellner Construction Company, $79,845. These bids were opened, and reported to the council with a recommendation that they be referred to the board of public works, health commissioners, committee on health, and committee on public buildings and grounds. This was accordingly done. On September 18, 1899, these committees, with the board, made a joint report to the council, setting out the specifications upon which bids were asked, the notice to bidders, the bids required, and a recommendation that the “bids, plans, and specifications of the Engel Sanitary & Cremation Company be accepted,” and that all other bids be rejected. They stated their reasons for rejecting the other bids as follows: The Davis Garbage Furnace Company's bid came too late. The Duke & Kellner Construction Company bid was exorbitant, and the plans and specifications defective in certain specified particulars. The Jacobi Company failed to comply with the general specifications, and the Dixon Garbage Crematory Company also failed to comply therewith, and its plans, etc., were defective in certain particulars stated. There was no report that any of the bidders were incompetent, or otherwise unreliable; nor was there any recommendation from the board of public works that the lowest bid was unreasonably high. After due consideration, the council adopted resolutions rejecting all bids, and awarding the contract to the Engel Sanitary & Cremation Company at the sum of $57,800, as being the lowest bidder who had complied with the charter requirements and the specifications and advertisement under which bids were received. Before the restraining order was served, a contract was entered into between the city and said company. Answers were filed admitting most of the facts hereinbefore stated, alleging compliance with the charter provisions, and good faith in all their transactions. Upon the record so made, the attorneys for the Engel Company obtained an order to show cause why the restraining order should not be vacated. Upon the hearing, several affidavits were used, which do not materially change the situation. The court denied the motion. The city has appealed.

Carl Runge and Joseph B. Doe, for appellant.

Austin, Fehr & Gehrz and W. H. Timlin, for respondent.

BARDEEN, J. (after stating the facts).

The following propositions are involved in the decision of this appeal: (1) That the proceedings of the common council and board of public works were not in accordance with the provisions of the city charter, in that no proper plans and specifications of the work to be done were ever filed with the board of public works. (2) That said contract was not let to the lowest bidder. (3) That the board of public works, in acting upon the bids and recommending the making of the contract with the Engel Company, did not act alone, but conjointly with the commissioner of health and the committee on health and public buildings and grounds. (4) That the board, in letting the contract, did not make the reservations therein required by section 20 of chapter 5 of the city charter.

1. The city charter provides for an executive board, called the “Board of Public Works.” This board is empowered to make contracts in the name and on behalf of the city for the purposes and under the limitations prescribed therein. They are also to have special charge of all public buildings and grounds, and of all public works commenced or undertaken by the city or either of its wards. Sections 1, 6, subc. 5, c. 184, Laws 1874. Section 9 of said chapter provides that: “Whenever any public work or improvement shall be ordered by the common council, the said board shall advertise for proposals for doing the same; a plan or profile of the work to be done, accompanied with specifications for doing the same, or other appropriate and sufficient description of the work required to be done, and of the kinds and quality of the material to be furnished being first placed on file in the office of the board for the information of bidders and others.” The section further provides for the advertisement for such work; that proposals shall be sealed, and accompanied with a bond, in such penal sum, not less than 30 per cent. of the amount of the engineer's estimate of the cost of such work, as the board may require, or a cash deposit, conditioned that he “will execute and perform the work for the price mentioned in its proposal, and according to the plans and specifications on file,” in case the contract is awarded him, etc. Under the charter the primary authority for the institution of projects for public improvements or the building of public buildings was vested in the council. It alone had authority to take the initial step. It was its duty to procure the proper plans and...