Allen v. City of Milwaukee, 128 Wis. 678

Allen v. City of Milwaukee

128 Wis. 678 | Wis. | 1906

The following opinion was filed March 20, 1906:

Dodge, J.

In Dean v. Charlton, 23 Wis. 590, this court decided that under charters which give power to the city to impose, by special assessment, upon abutting lots the cost of a street improvement only upon competitive bids, cities, have no power to adopt a patented pavement so controlled by a monopoly that there can be no- competition, in the fair' and reasonable meaning of the word. For nearly forty years the legislature has approved this construction of such grants of. power by re-enacting them in substantially the same form and in some instances by making special provision for-obtaining the benefits of patents. The authority of that case in this respect has not been contradicted. In Kilvington v. Superior, 83 Wis. 222, 53 N. W. 487, urged by respondents, the decision in no wise conflicts with the earlier case. It proceeds upon and gives effect to a distinction fully recognized in Dean v. Charlton, namely, that such general city powers as lighting streets, purchase of a fire engine, or destruction of garbage are generally and broadly conferred by other clauses of our city charters, and that as to them the requirement that purchases of materials or letting of work be done upon competitive bidding is merely regulative of a *683duty which the city government is bound to perform; and,, as a result, that the legislature must be deemed not to have intended the requirement for competitive bidding to apply where it could not. The field is one of construction of our own statutes enacted after the rule of Dean v. Charlton was announced, so that views of courts in other jurisdictions upon their statutes are by no means controlling if even relevant. Eor Milwaukee, however, the legislature, evidently recognizing the rule of Dean v. Charlton as established generally, proceeded to provide a method of obtaining privileges under-patents entirely consistent with all provisions elsewhere in the charter for competitive bidding. Without doubt that legislation was intended to exclude any other method of acquiring for the city the advantages of patented rights, articles, or processes for any purpose. ' Ricketson v. Milwaukee, 105 Wis. 591, 81 N. W. 864. That statute (sec. 23, ch. V, of present charter) provides:

“The said board shall have power, under the authority of' the common council, to make a contract or contracts with the patentee or his licensees or assigns, to use any patent or patented article, process, combinat-ipn, or work for the said city, at a stipulated sum or royalty for the use thereof. And thereupon the said board shall have power to order any work, whether chargeable to the said city or to lots, parts of lots,, or parcels of land therein, to be done' with the use of such patent or patented article, process, combination, or work; and whenever the owner or agent of any lot, part of lot, or-parcel of land in said city, or other person authorized by law to do such work, shall do the same and use any such patent or patented article, process, combination, or work in doing the same, he shall pay to the said city the sum or royalty chargeable therefor; or the amount of such sum or royalty may be charged as a special assessment upon the respective lots, parts-of lots, and parcels of land in front of which such patent was so used, and collected for the use of said city, as other special taxes are_ collected.”

This enactment, clearly intends, while permitting the city to acquire the right to use patented articles or processes by *684purchase of such right, to require approval of the council for such purchase, and, of course, that the subject shall have been so submitted for consideration by the council that no reasonable doubt that they have consciously and intentionally given the authority can arise. It is certainly debatable whether submission of the question of paving Jackson street with a “bitulithic pavement” as if there were several kinds which might be in competition, and a resolution merely in the affirmative, can be construed as an authority to the board of public works to contract for the privilege of laying “Warren’s bitulithic pavement” covered by a patent. It is at least open to argument that the purpose of the board to make such contract was so obscured, if not concealed, that the subject may not have been purposely passed on by the council; especially in view of the prohibition imposed on the board by ch. 107, Laws of"1903, that no special brand of asphalt shall be required by name to be furnished in any specifications for street paving. We, however, nefed not decide this question, for it is also clear that see. 23, ch. V, was enacted as a part of the whole charter and to enable the making of improvements in the manner and according to the scheme prescribed, although but for that section such|S)ther requirements would be inconsistent with a patented article or process. One essential of the scheme for paving streets at the abutters’ expense is competitive bidding, and it is clear that sec. 23, ch. Y, does not intend to dispense with that. It nowhere authorizes the contract for the work to be made with the person who, by reason of his patent, can exclude all other bidders, nor does it anywhere authorize imposition by special assessment of anything but the “royalty” which the city may pay by reason of the noncompetitive contract for the use of the patent authorized by that section, in addition to the cost of the work ascertained by competition under the other provisions of the charter. Obviously the legislative purpose contemplated, as to such work, the acquisition of a *685right to operate under tbe patent for a royalty and then, and only then, tbe letting of tbe actual work to tbe lowest bidder. Does tbe offer made by tbe patentee constitute any sucb contract, even conceding tbat the board of public works bas so accepted tbat offer as to close a contract and tbat tbe council bas authorized sucb action ? It seems to us to come very far from it; indeed to disclose a studied attempt to evade tbe purpose of tbe charter so as tp confer,upon tbe patentee a contract for a large part of tbe work to be done without even tbe formality of any bidding therefor. It is to be noticed tbat nearly two thirds of tbe whole cost of tbe paving, viz., $1.40 out of $2.25, is to go to tbe patentee, and for tbat price it agrees to supply tbe crushed stone for tbe upper two inches of tbe pavement, to do tbe work at Milwaukee of sorting, coating, and mixing this stone with, hot asphalt hour by hour as' the work proceeds, to supply and- prepare for laying tbe flushing coat in tbe same way, to furnish tbe stone chips for tbe final surface, and to hire an advisory expert for tbe progress of tbe work. Can tbe $1.40 per yard of pavement thus to be paid the patentee in any reasonable sense be termed “royalty” which, by tbe terms of -sec_23, cb. V, tbe city may include in, or add to, tbe special assessment, or does sucb work, in large part, fall within tbe “use of a patent, or patented article, process,” etc., for which alone tbe city is so authorized to contract? Any sucb contention would be absurd. Tbe bulk of tbe patentee’s agreement is for doing tbe paving. If sucb a division of the work of an improvement can be dictated by the patentee, where must be stop in absorbing into bis noncompetitive contract other parts of tbat work ? May be not insist that crushed stone and cement for the six inches of concrete be purchased from him at bis own price, or tbat bis teams and rollers shall be employed to do tbe work, or tbat be alone perform‘still other parts of tbe work till tbe supposed competitive bidder is reduced to a mere name ? If patentee may absorb two thirds of the work *686and price, we see no very logical stopping place short of complete nullification of the right of the lotowner to have competitive bidding, which, of course, is a valuable right, theoretically at least tending to lessen the cost. Indeed, under ■the terms of this proposal from Warren Bros. Company the ■city seems not to' acquire the right to “use” the patent or process. The only offer on that subject is that the successful bidder, not the city, shall have the right to use the patents so far as necessary in laying the pavement. It is difficult to discover that this would confer any right on the city to use patent, process, or combination; and yet it probably must use them from time to time as the pavement may require resurfacing or other repair with the patented materials. These considerations lead us to1 the conclusion that no contract such as is authorized by sec. 23, ch. V, was made with the patentee or its assigns, hence that no jurisdiction was acquired to order, or contract for, the doing of the work involving the use of the patent, hence that the attempted contract with defendant Central Bituliihic Paving Co. was void.

Concluding, as w© must, therefore, that no valid contract was ever made for doing this work, and that the invalidity was of a character highly likely to prejudice the plaintiff in manner and degree not readily separable from the burdens which might lawfully be imposed upon him, we must hold that the court should have enjoined the proceedings at once. When it is clear as matter of law that there can be but one result of a litigation, and that an act will be void if done, but harmful to the plaintiff meanwhile, the court should interpose to maintain the status quo. Beaser v. Ashland, 89 Wis. 28, 61 N. W. 77; Liebermann v. Milwaukee, 89 Wis. 336, 61 N. W. 1112; Boyd v. Milwaukee, 92 Wis. 456, 66 N. W. 603. Plaintiff’s right is entirely free from the obstacle found in State ex rel. Schinigen v. La Crosse, 101 Wis. 208, 11 N. W. 167; State ex rel. Hallauer v. Gosnell, 116 Wis. 606, 93 N. W. 542; and Beaser v. Barber A. *687P. Co. 120 Wis. 599, 98 N. W. 525, and many other cases, where the plaintiff stood by and allowed contractor to incur expense of a work without a warning, for here due promptness was exercised in notifying defendants of plaintiff’s claim, both, as taxpayer and lotowner, that the contractor could receive no pay, either in money from the city or in assessments against plaintiff’s property, if he persisted in acting under his void contract; this action having been commenced before any work was done.

The reasons already stated which result in the conclusion that the contract attempted to be made by the board of public works was illegal and, therefore, void are supplemented by the provisions of see. 17705, Stats. 1898. This statute provides that contracts of a foreign corporation which has not complied with the requirements of that section “shall be wholly void on its behalf . .• . but shall be enforeible against it.” That such enactment is intended to be enforced according to its words was decided in Ashland L. Co. v. Detroit S. Co. 114 Wis. 66, 89 N. W. 904. Confessedly, when the contract in question was made, the defendant Central Bitulithic Paving Go. had not complied with the conditions of sec. 17705, Stats. 1898. It has, therefore, no legal right to demand, nor is the city under any legal obligation to pay, any money by reason of the contract. The right of a taxpayer to enjoin the payment by city officers of money which the city does not owe is most thoroughly established by a long line of our own decisions, only a few of which need be cited. Frederick v. Douglas Co. 96 Wis. 411, 71 N. W. 798; Rice v. Milwaukee, 100 Wis. 516, 76 N. W. 341; Mulberger v. Beurhaus, 102 Wis. 1, 8, 78 N. W. 402; St. Croix Co. v. Webster, 111 Wis. 270, 273, 87 N. W. 302; Kircher v. Pederson, 117 Wis. 68, 93 N. W. 813.

' As the facts were all before the court, and left no reasonable doubt as to the final result, the temporary injunction against payment out of the city treasury of the moneys which *688would be due if the contract were valid should not have been dissolved.

By the Qowrt. — The order appealed from is reversed, and tbe cause remanded for further proceedings according to law.

Upon a motion by the respondents for a rehearing there was a brief by J ohn T. Kelly, city attorney, and Ga/rl Bunge, of counsel, for the Oity of Milwaukeej a brief by Arthur Jones, counsel for The Central Bitulithic Pming Company; and a brief in opposition by Byan, Ogden <& Bottum, attorneys for the appellant.

The motion was denied June 21, 1906.