291 N.W. 770 | Wis. | 1940
The complaint alleges that the plaintiff is and was a Wisconsin nonstock corporation consisting of members of the highway-construction industry and affiliated interests, the purpose of which is "to promote the business of the individual members, advance the mutual interests to cultivate relations and co-operative effort." It further alleges the defendant road contractor on February 28, 1938, signed a written application for membership in which he agreed to accept the by-laws and rules of the association, especially those pertaining to dues; that the application was accepted and $250 was paid as advance dues; that the resolution as to dues provides that each member shall pay as an assessment for 1938 one fourth of one per cent of the amount of each contract secured in that year, which amount was to be paid sixty days after the award of the contract; and that the amount so computed on the above basis and due from defendant is $660.54, less the advanced dues of $250, or $410.54; and plaintiff seeks judgment for that amount, plus interest at six per cent from October 16, 1938. Defendant demurred. The gist of appellant's argument is that this annual percentage assessment on members based on bids accepted by federal, state, or county authorities is the exaction of a tribute against public moneys; and that whether or not actual injury is shown, the mere tendency to chill competition, to increase costs of public projects, or open the door to vicious practices, is illegal.
Is the complaint sufficient against the demurrer? An agreement limited to having a common treasury into which a certain percentage of the revenue from public contracts is to be paid falls under condemnation of the rule protecting *16
the freedom and integrity of competition in securing contracts for public work. Morgan v. Gove,
The complaint before us does not disclose the "good ground or reason to support it," but is for recovery of a balance due upon an assessment against a contractor of one fourth of one per cent of the amount of each contract secured by him and the assessment is levied on "highway work in which federal, state or county funds are involved." This levy is provided in the by-laws of the plaintiff association. The public policy which insists upon competition between bidders for public work and dictates that contracts shall be let to the lowest responsible bidder is violated when prospective bidders enter into an arrangement to exact from each other a percentage "of the amount of each contract secured" during the ensuing year. So valued is this method under our public policy that the law casts out as illegal an arrangement to hamper competitive bidding when so limited and so *17
described. If the mere tendency or purpose of a contract works against public policy, it is illegal, even though no actual damage be shown. 12 Am. Jur. p. 664, § 168;Houlton v. Nichol,
The claim on the part of the respondent is not based upon facts similar to those in cases which have been before this court, such as Milwaukee Masons and Builders' Asso. v.Niezerowski,
By the Court. — Order reversed, and cause remanded for further proceedings according to law. *18