Stedman v. City of Berlin

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtPINNEY
Citation97 Wis. 505,73 N.W. 57
Decision Date16 November 1897
PartiesSTEDMAN ET AL. v. CITY OF BERLIN ET AL.

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.

[73 N.W. 58]

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...

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39 practice notes
  • Chi., St. P., M. & O. Ry. Co. v. Douglas Cnty.
    • United States
    • United States State Supreme Court of Wisconsin
    • January 8, 1908
    ...v. Brown, 3 Wis. 603;State ex rel. Atty. Gen. v. Madison S. R. Co., 72 Wis. 612, 40 N. W. 487, 1 L. R. A. 771;Stedman v. City of Berlin, 97 Wis. 505, 73 N. W. 57;Am. Smelting Co. v. Colorado, 204 U. S. 103, 27 Sup. Ct. 198, 51 L. Ed. 393;McCormick v. Hayes, 159 U. S. 332, 16 Sup. Ct. 37, 40......
  • Superior Water, Light & Power Co. v. City of Superior
    • United States
    • United States State Supreme Court of Wisconsin
    • January 11, 1921
    ...State ex rel. Attorney General v. Madison Street Railway Co., 72 Wis. 612, 40 N. W. 487, 1 L. R. A. 771;Stedman v. City of Berlin, 97 Wis. 505, 73 N. W. 57;State ex rel. Attorney General v. Portage City Water Co., 107 Wis. 441, 83 N. W. 697. The franchise granted to the Superior Waterworks,......
  • State ex rel. Owen v. Donald
    • United States
    • United States State Supreme Court of Wisconsin
    • February 24, 1915
    ...There was no option feature about the purchase agreements, as in Burnham v. Milwaukee, 98 Wis. 128, 73 N. W. 1018, and Stedman v. Berlin, 97 Wis. 505, 73 N. W. 57. The absolute liability was not contingent upon some future occurrence, as in Herman v. Oconto, 110 Wis. 660, 86 N. W. 681;Town ......
  • City Council Of Dawson v. Dawson Waterworks Co
    • United States
    • Supreme Court of Georgia
    • March 14, 1899
    ...v. City of Lamar, 128 Mo. 188, 26 S. W. 1025, and 31 S. W. 756; Weston v. City of Syracuse, 17 N. Y. 110; Stedman v. City of Berlin (Wis.) 73 N. W. 57; New Orleans Gaslight Co. v. City of New Orleans (La.) 7 South. 559; City of East St. Louis v. East St. Louis Gaslight & Coke Co., 98 11......
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41 cases
  • Superior Water, Light & Power Co. v. City of Superior
    • United States
    • United States State Supreme Court of Wisconsin
    • January 11, 1921
    ...State ex rel. Attorney General v. Madison Street Railway Co., 72 Wis. 612, 40 N. W. 487, 1 L. R. A. 771;Stedman v. City of Berlin, 97 Wis. 505, 73 N. W. 57;State ex rel. Attorney General v. Portage City Water Co., 107 Wis. 441, 83 N. W. 697. The franchise granted to the Superior Waterworks,......
  • City Council Of Dawson v. Dawson Waterworks Co
    • United States
    • Supreme Court of Georgia
    • March 14, 1899
    ...v. City of Lamar, 128 Mo. 188, 26 S. W. 1025, and 31 S. W. 756; Weston v. City of Syracuse, 17 N. Y. 110; Stedman v. City of Berlin (Wis.) 73 N. W. 57; New Orleans Gaslight Co. v. City of New Orleans (La.) 7 South. 559; City of East St. Louis v. East St. Louis Gaslight & Coke Co., 98 111. 4......
  • Chi., St. P., M. & O. Ry. Co. v. Douglas Cnty.
    • United States
    • United States State Supreme Court of Wisconsin
    • January 8, 1908
    ...v. Brown, 3 Wis. 603;State ex rel. Atty. Gen. v. Madison S. R. Co., 72 Wis. 612, 40 N. W. 487, 1 L. R. A. 771;Stedman v. City of Berlin, 97 Wis. 505, 73 N. W. 57;Am. Smelting Co. v. Colorado, 204 U. S. 103, 27 Sup. Ct. 198, 51 L. Ed. 393;McCormick v. Hayes, 159 U. S. 332, 16 Sup. Ct. 37, 40......
  • State ex rel. Bolens v. Frear
    • United States
    • United States State Supreme Court of Wisconsin
    • January 9, 1912
    ...27 Wis. 256;Cohn v. Wausau Boom Co., 47 Wis. 314, 2 N. W. 546;Baier v. Schermerhorn, 96 Wis. 372, 71 N. W. 600;Stedman v. Berlin, 97 Wis. 505, 73 N. W. 57;Liermann v. Milwaukee, 132 Wis. 628, 113 N. W. 65, 13 L. R. A. (N. S.) 253;Linden Land Co. v. Milwaukee, etc., Co., 107 Wis. 493, 83 N. ......
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