State ex rel. Fire & Rust Proof Const. Co. v. Icke

• Decision Date: 10 November 1908
• Citation: 118 N.W. 196,136 Wis. 583
• Court: Wisconsin Supreme Court
• Parties: STATE EX REL. FIRE & RUST PROOF CONST. CO. v. ICKE, CITY ENGINEER.

136 Wis. 583

118 N.W. 196

STATE EX REL. FIRE & RUST PROOF CONST. CO.

v.ICKE, CITY ENGINEER.

Supreme Court of Wisconsin.

Nov. 10, 1908.

Appeal from Municipal Court of Madison; E. Ray Stevens, Judge.

Mandamus by the state, on the relation of the Fire & Rust Proof Construction Company, against John F. Icke, city engineer of the city of Madison, to compel him to make an estimate of the value of the part of a drain completed and the materials delivered. Judgment for defendant, and relator appeals. Affirmed.

The petitioner, a Wisconsin corporation, contracted with the city of Madison to furnish all the labor and materials to lay gutters, to grade, macadamize, and otherwise improve Blount street of the city, and to build a concrete drain under this street from Dayton street to Lake Monona. The contract provided that during the first week of each month the defendant John Icke, the city engineer, should make an approximate estimate of the value of the work completed and the materials delivered; that on or before the 16th of each month the contractor should be paid the balance due as shown by such estimate, after 25 per cent. had been deducted (any partial payment so made not to be construed as a final or partial acceptance of the work performed); and that final payment should be made within 60 days after acceptance of the work by the city. The petitioner alleges that on July 1, 1907, he had partly completed the cement curb and gutter and the grading, had partly excavated and put in the bottom and sides of the drain, and had delivered a large portion of the materials necessary for its construction. At or about July 8, 1907, the engineer made an estimate of the value of a portion of the work so claimed by the petitioner to have been completed, but included nothing therein for a concrete drain between Railroad street and Washington avenue and nothing for materials delivered for such drain. Petitioner alleges that such part of the drain had been completed and the materials were delivered as called for by the contract. Demand has been made on the engineer that he make an estimate for such work and materials, but he has refused so to do. Petitioner prays that peremptory mandamus may issue commanding the engineer to make an estimate of the value of the part of the drain so completed and the materials so delivered. The return asserts that, by reason of noncompliance with specifications and injury from floods, such work and material are of no value to the city. There was no traverse to the return, yet the case seems to have been tried as if at issue on the facts. The court found certain failures of relator to comply with the contract, and impossibility of estimating the value of his work to the city, which findings are assailed as not supported by the evidence. Judgment denying the peremptory writ and dismissing the action, from which relator appeals.Sanborn & Blake (Kronshage, McGovern & Fritz, of counsel), for appellant.

John A. Aylward, City Atty. (R. M. Bashford, of counsel), for respondent.

DODGE, J. (after stating the facts as above).

At the very threshold of this case the court is confronted with the question whether mandamus is either a possible or a proper remedy, conceding that all the facts are as relator claims them. This question is at least akin to jurisdictional, for it must be resolved in the affirmative before the court can properly proceed to consider the controversy between the parties. Neither was this question considered by the court below apparently, nor is any aid thereon given to this court by the briefs. Mandamus is an extraordinary remedy, and one of the most absolute conditions to it is that the duty sought to be compelled shall be a clear and absolute one imposed by law. State v. Manitowoc, 52 Wis. 427, 9 N. W. 607;State v. Benzenberg, 108 Wis. 435, 438, 84 N. W. 858;State v. Hunter, 111 Wis. 582, 588, 87 N. W. 485;State v. Milwaukee, 132 Wis. 615, 619, 113 N. W. 40;Fox v. Workman, 6 Cal. App. 633, 92 Pac. 742;Eberle v. King (Okl.) 93 Pac. 748. A careful examination of all laws and ordinances relating to the city engineer or city surveyor of the city of Madison fails wholly to disclose any provision of law requiring him, as an absolute duty, to make certificates of partial performance of contract work. Indeed, the only provisions we find with reference to estimates at all is contained in section 925-94, St. 1898--a portion of the general charter apparently adopted by the city of Madison--to the effect that as the work progresses “the board of public works, or such officers as shall be designated to discharge its duties, may, from time to time, at their discretion, grant to the contractor an estimate of the amount and proportionate value of the...