Wagner v. City of Milwaukee

• Citation: 220 N.W. 207,196 Wis. 328
• Parties: WAGNER v. CITY OF MILWAUKEE ET AL.
• Decision Date: 18 June 1928
• Court: Wisconsin Supreme Court

196 Wis. 328

220 N.W. 207

WAGNER

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

June 18, 1928.

Appeal from the Circuit Court for Milwaukee County; Charles L. Aarons, Circuit Judge. Affirmed.

Action begun August 15, 1927, by Herman A. Wagner, on behalf of himself and all other taxpayers of Milwaukee, to restrain the city of Milwaukee and its clerk, comptroller, and treasurer from paying bills incurred for public printing. From a judgment entered November 17, 1927, restraining the payment of such money, defendants appealed.

The charter of the city of Milwaukee provides that all work and the purchase of all supplies, including printing, when the cost exceeds the sum of $200, shall be let by contract to the lowest bidder. Pursuant to this charter provision, bids were taken and a contract let for the printing of the proceedings of the common council, which contract expired in April, 1927. A new contract was not made until August, 1927.

At the time this action was begun and a temporary restraining order entered, there was approximately $1,000 due for the printing of the common council proceedings and ordinances, if paid for at the rate fixed by the contract which expired in April, 1927. When the plaintiff notified the city of the illegality of payments made under the contract which had expired, the common council passed a resolution ratifying and approving everything that had been done by the city officials in connection with the publication of the proceedings and authorizing the city officers to continue to have the proceedings printed “without the intervention of a formal contract and to pay for the same until such time” as a new contract is made.

John M. Niven, City Atty., and Charles W. Babcock and Robert J. Gunnis, Asst. City Attys., all of Milwaukee, for appellants.

Lamfrom, Tighe, Engelhard & Peck, of Milwaukee (Leon B. Lamfrom, of Milwaukee, of counsel), for respondent.

STEVENS, J.

1. The plaintiff does not ask that the money be returned which had been paid for printing done after the contract expired. The only relief demanded is that future payments be restrained. Cases that hold that equity will not compel the repayment of money illegally paid by a municipality where the city has received value for its money throw no light upon the question presented by this appeal. Nor are we aided by those decisions which hold that the courts will not restrain the irregular exercise of power by public officials when its exercise in no way jeopardizes the private rights of the citizen or taxpayer seeking judicial relief.

[1][2][3] 2. It clearly appears in this case that the payment restrained would result in an illegal disbursement of the money of the taxpayers of Milwaukee. The illegal disbursement of this money would constitute an invasion of the funds of the city in which each individual taxpayer has a...