Stedman v. City of Berlin

• Decision Date: 16 November 1897
• Citation: 97 Wis. 505,73 N.W. 57
• Parties: STEDMAN ET AL. v. CITY OF BERLIN ET AL.
• Court: Wisconsin Supreme Court

97 Wis. 505

73 N.W. 57

STEDMAN ET AL.

v.CITY OF BERLIN ET AL.

Supreme Court of Wisconsin.

Nov. 16, 1897.

Appeal from circuit court, Green Lake county; George W. Burnell, Judge.

Action by Hiram Stedman and others against the city of Berlin and others. From an order sustaining a demurrer to the complaint, plaintiffs appeal. Affirmed.

This action was brought by the plaintiffs, Stedman and others, suing for themselves and for all other taxpayers of the city of Berlin, against the city of Berlin, its city treasurer, city clerk, and W. H. Wheeler, to set aside and vacate a certain ordinance, contract, and franchise for the construction of waterworks in said city, as wholly null and void, and as beyond the power of the city to make such grant, and as fraudulent; and the complaint prayed that the defendant Wheeler, his agents, assigns, etc., be restrained by the order and judgment of the court from commencing proceedings for or completing the erection of a system of waterworks in said city, pursuant to said ordinance, franchise, and contract; and that the city, its mayor and common council, its clerk and city treasurer, be enjoined and restrained from levying any taxes on taxable property in the city on account of hydrant rents that might accrue under said contract, etc., or for the purchase of said system of waterworks or any interest therein, or for the payment of any incumbrance thereon or interest on the same; and that the city be also restrained from incurring or creating any indebtedness for or on account of said waterworks, etc.; and for general relief. The defendants demurred to the complaint separately, on the grounds, among others, (1) that the court had not jurisdiction of the subject of the action; and (2) that the complaint does not state facts sufficient to constitute a cause of action. Upon argument it was ordered that the demurrers be sustained, and that the defendants have judgment dismissing the complaint, from which order the plaintiffs appealed.Barbers & Beglinger and Engelbracht & Engelbracht, for appellants.

George B. Haney, Perry Niskern, and Bouck & Hilton, for respondents.

PINNEY, J. (after stating the facts).

The complaint in this action, with its exhibits, is so lengthy that it is impracticable to give more than a brief abstract of it. The contract and franchise granted to the defendant Wheeler were, in general terms and in substance, the same as in other like cases for the construction of waterworks and to furnish fire protection to cities. It required the construction of waterworks for the city of Berlin, with 80 hydrants for fire purposes, at a yearly rental of $4,500, to be raised by taxation, for a period of not more than 30 years, and with an option that the city might purchase said system of works and extensions at any time within 6 months after their completion, for the sum of $60,000, and, in addition, such sum or sums as said Wheeler might have expended in addition thereto during the existence of the franchise, which was 30 years, at such price as might be agreed upon between the owners of the works and the city; and, in case they could not agree upon the sum, it was to be fixed by appraisement as provided in the ordinance and contract for the construction of said works and granting of the franchise, and the city was to take the same subject to any mortgage indebtedness which should be a lien on said system; but the city was in such event to pay the owners of the works the value so ascertained and fixed, after deducting the amount of the mortgage indebtedness. The proposition to construct the system of waterworks was accepted by the city, and Wheeler gave bond, with sureties, to the city, for faithful performance on his part. October 17, 1895, notice was given that proposals for the constructing of such works, and awarding the contract therefor, would be received by the city until 6 o'clock p. m., November 6, 1895. The council received bids, and rejected all but that of Wheeler, and on the next day awarded the proposed franchise to him; and on the 15th of November it was ordered published in the city paper, and published accordingly. November 19th the finance committee presented an estimate of the amount of money the city would need the ensuing year, so as to enable the common council to levy the necessary annual tax; and it was levied according to such report, including $13,078.20, to defray current expenses for all city purposes, exclusive of schools; and it included $2,250 for hydrant rental and waterworks under said ordinance and contract therefor. The entire levy was $26,214.21, and was levied upon the taxable property of the city, as shown by the assessment rolls of the last annual assessment, amounting to $873,807. Under the charter, the total amount the city could levy for general city purposes, exclusive of schools, was 10 mills on the dollar, and which, upon the assessment of that year, amounted to $8,738.07. Said levy was intended in part to pay hydrant rentals to the defendant Wheeler; and it was alleged that the tax was therefore illegal and void. The tax rolls had been completed, and the collection of the tax had been commenced. Various objections were made to the contract and ordinance, and to the validity of the taxation sought to be enjoined.

1. It is contended that the franchise and ordinance are illegal and void, because such franchise was not published for not less than two weeks previous to taking action thereon by the common council, in order that the people whose interests were at stake might have an opportunity to be heard if they desired. Laws 1893, c. 148, § 1. And it is alleged that the franchises granted differed in certain particulars from the one published in the city paper. We are not called on to determine whether the franchise is void for the want of such publication or for the irregularities pointed out. The contract, it appears, had been completed before this action had been commenced, and the defendant Wheeler had acted under it, and given the city the bond required by the ordinance. The remedy to set aside a franchise irregularly or fraudulently granted, where the party to whom it has been granted is in the exercise of the privileges it confers, is by quo warranto or scire facias at the suit of the state, and not by an equitable action at the suit of private parties. City of Ashland v. Wheeler, 88 Wis. 617, 60 N. W. 818. The method of taking advantage of...