181 Wis. 601 | Wis. | 1923
Lead Opinion
The cause under consideration relates to the rights of plaintiff under a “drainage” contract entered into by the town board of supervisors of the town of Hampden, in Columbia county, and the defendant Wisconsin Drainage Company, whereby the defendant was to construct a certain drainage ditch through the lands of the plaintiff and others pursuant to the provisions of ch. 54, Stats. 1917. Plans and specifications were provided by the engineer of the board, and the contract provided that such ditch should be constructed in accordance with such plans and specifications. The town board was given special powers under the law and acted as a special agency for the owners of the property affected, although not constituted a separate corporate body. The board’s duties as such agency were fixed by statute and were independent of their duties as supervisors of the town as such. The board could only act if it should find that the proposed work would promote the public health or the public welfare and that the benefits to the landowners would exceed the damages and costs of construction. Sec. 1362, Stats. 1917. The law further provided that as soon as the contract was let for the construction of the drain, and assessments for such construction made against the several tracts of lands affected should fall due, the same should be paid to the town treasurer, who should hold the same as a separate fund to the credit of the
The law was very brief and general in character. The allegations in the complaint are that a contract was let for the construction of the ditch; “that said contractor failed and refused to construct said ditch according to the plans and specifications therefor and neglected to dig the same tO' grade and failed and neglected to slope the sides as provided therein, and failed and neglected to dig the top and bottom of said ditch to the width specified by said plans and specifications ; that large quantities of rock were left in such ditch and that it was also defective in other particulars. . . . Said town board and said contractor, through fraud and collusion, in violation of and disregarding the rights of plaintiff and other property owners interested in said ditch, in form executed a settlement, releasing the said contractor from the performance of said contract upon leaving the sum of $1,500 of the contract price for such work in the hands of the town board.”
There are other allegations to the effect that such ditch was worthless and failed to perform its function, and that by reason thereof another assessment was made against the lands of the plaintiff by the properly constituted authorities, in the sum of $1,410.86, which became a lien upon plaintiff’s land and collectible, in order that the ditch might be completed in accordance with the terms of the original contract.
Does the complaint, liberally construed, state a cause of action? The defendant company, by its contract with the town board, owed a duty to- construct the ditch in accordance with the terms of the contract. That was a contractual duty to the board, but under the contract it was for the bene
It is therefore held that if the allegations in the complaint be proven, then the plaintiff is entitled to recover, in the absence of excuse of justification, the additional sum which he was assessed and compelled to pay in order that the drainage might be completed according to the terms of the original contract. The court has given consideration to all of the objections urged by defendant, but deems further discussion unnecessary.
By the Court. — The order of the circuit court is affirmed.
Dissenting Opinion
(dissenting). From the complaint it appears .that the original contract in 1918 was let by the members of the town board under the Town Drainage Law as it then stood, and the alleged fraudulent settlement was apparently made under the same law. A substantial change in the drainage laws was made by ch. 446, Laws of 1919, whereby, what are now secs. 1368 — 1 to 1368 — 30, Stats., took the place of the former laws. It is apparent that the new contract to complete the ditch was made; the new assessment against plaintiff’s property of which he now com
Such new board, by sec. 1368 — 26, became “a public corporation and shall be subject to all rules of law applicable to such organizations. It shall have the power to protect and maintain all drains under its jurisdiction and may report-to the Court all matters on which it desires advice and when authorized by the court or judge may institute all necessary actions. The court shall at all times have supervision over the board and may at any time require it to report on any matters connected with its duties.”
By sub. 6, sec. 1368 — 4, it is again provided that such board shall be a permanent body corporate and, among other things, have charge of all drains theretofore constructed in attempted compliance with statutory enactment.
The new drainage board being, therefore, a body corporate with power to bring all necessary actions as distinguished from that limited power which the town board had under the old law, any possible right of action that may exist on account of the transactions described in the complaint can and should be properly enforced by such new board rather than by any individual. Kircher v. Pederson, 117 Wis. 68, 93 N. W. 813, which is expressly re-affirmed in Berger v. Superior, 166 Wis. 477, 479, 166 N. W. 36. There is here no showing of demand upon and refusal by such proper official body to bring this action such as to warrant action by a private individual as in cases like Quaw v. Paff, 98 Wis. 586, 74.N. W. 369.
Crowley v. Milwaukee, 166 Wis. 156, 164 N. W. 833, is authority for maintaining an action against any municipal corporation that has defaulted in its duty, but not for such an action as here, in which there is no claim made that the new drainage board has failed in its duty.
I think, therefore, that the demurrer on the ground that the plaintiff had no legal capacity to sue should have been sustained.
