133 Wis. 35 | Wis. | 1907
This is an action in equity by the plaintiffs, as general taxpayers in the Third ward of the city of Milwaukee, against the city, its treasurer and comptroller, and the Central Bitulithic Paving Company, to declare void a certain alleged contract made by the city with said paving company for the repaving of a portion of Wisconsin street and enjoin the city from paying therefor out of city funds. The complaint alleged that the pavement was patented, and showed that the city in making the contract had not complied with the provisions of the charter covering the use of patented articles, but had adopted the same methods condemned by this court in Allen v. Milwaukee, 128 Wis. 678, 106 N. W. 1099. The complaint did not allege that any special assessments had been made against property to pay for any part of the work or that the plaintiffs owned any property subject to assessment therefor, but alleged that the contract had been fully com
It was held in Allen v. Milwaukee, supra, after full consideration, that, where the city had attempted to contract for the use of a patented article or process without following the charter requirements covering that subject, such contract was void, and we see no good reason for reviewing that decision now. It is true that in the Allen Case special assessments were to he made to cover a part of the cost of the work, while in the present case the entire cost appears to be chargeable to the city; hut in that case a part of the consideration was to be paid by the city, and the payment of this part was enjoined, as well as the issuance of assessment certificates, on the ground of the invalidity of the entire contract, and it was .said that the legislation in question “was intended to exclude any other method of acquiring for the city the advantages of patented rights, articles, or processes for my purpose ” Following that case we are obliged to hold that the paving contract in the present case was void.
But it is argued that the plaintiffs are estopped because they did not commence their action until the completion of the work, and in support of this argument Stale ex rel. Schintgen v. La Crosse, 101 Wis. 208, 77 N. W. 167; State ex rel. Taylor v. Superior, 108 Wis. 16, 83 N. W. 1100, and other cases, are cited, where persons owning real estate specially benefited by a public improvement have stood by without protest or aetion while the improvement was going on, and were held estopped from questioning the validity of special assessments levied against the benefited real estate. In our judgment the principle of these cases has no application. In those eases mere private relief was sought by the property owner to prevent the collection of an assessment against his individual property when he had remained silent until the completion ■of the work, knowing that the improvement was going on and
We have discussed all of the propositions urged by the appellants in support of their demurrers. Another question has
No court has taken more advanced ground in maintaining taxpayers’ actions than has this court, as the long list of such actions to be found in our reports will testify. Examination of the records in these cases will show that the allegation in question has been almost universally inserted, and hence the question now under consideration has never been sharply presented. It is worthy of remark, however, that in the leading case of this character (Peck v. School Dist. 21 Wis. 516) the action was brought by several taxpayers to set aside a void contract for the purchase of a school house, with no allegation that it was brought on behalf of all other taxpayers, and the court sustained the complaint against a general demurrer, Chief Justice DixoN remarking in the opinion that on the facts stated there was “no doubt of the fraudulent nature of the contract, or that a court of equity will set it aside at the suit of the taxpayers of the district.” It is true that the exact-point was not then debated. Still the necessary effect of the decision, was to sustain the complaint on the ground that it was in fact a complaint on behalf of the taxpayers of the district. In Allen v. Milwaukee, 128 Wis. 6Y8, 106 N. W. 1099, a temporary injunction based upon a complaint by a single taxpayer, not alleging that he brought the action on behalf of all, was held proper: it being said that the right of a taxpayer to enjoin the payment of money which the city does not owe is established 'by a long line of decisions. The point
When the adjudications in other states come to be considered, we find in many of them a like state of uncertainty. In the great majority of the states, taxpayers’ actions are freely entertained, and in a number of them complaints made by one or more in behalf of all, and complaints made by one alone seeking only relief suitable for all, have been treated alike as public actions, the rulings being based upon the same precedents. The subject is quite fully treated and the authorities cited in 1 Pom. Eq. Jur. (3d ed.) § 260, notes 2, (d) and (e). In Illinois and Indiana the allegation has been expressly held to be unnecessary (Knopf v. First Nat. Bank, 173 Ill. 331, 50 N. E. 660; Board of Comm’rs v. McClintock, 51 Ind. 325), while in West Virginia it has been held essential (McClung v. Livesay, 7 W. Va. 329) ; and in Maryland a complaint by a printing firm (who were taxpayers, but did not allege that they sued in behalf of all), the object of which was to vacate a printing contract alleged to have
It cannot be said, therefore, that any certain and definite rule has been laid down either by the decisions in our own court or by the great mass of the decisions in other courts on the subject of the necessity of the insertion of the formal allegation in question, and we feel free to adopt the rule which seems most reasonable and best calculated to promote the ends of justice, without over-refinement of the rules of pleading. The evident and only purpose of the allegation is to stamp the action unmistakably as an action brought on behalf of the public. When, however, the complaint is so stamped by its other allegations as to the nature of the wrong and by the prayer for relief, it seems to us that the absence of the formal stamp cannot in reason be held to be fatal. To say in the face of such allegations that it purports only to state a private cause of action seems to us illogical and unduly technical.
The complaint before us states only a threatened wrong to the whole body of taxpayers and asks only relief suitable for the whole body, and we hold therefore that it shows upon its face that it is filed on their behalf, and that any taxpayer is entitled to appear and be heard in the action, and that all will be bound by the result.
By the Court. — Order affirmed on both appeals.