| Wis. | Jun 21, 1939
Defendant contends, (1) that upon the previous appeal it was held that defendant was prohibited
It was the holding of this court upon the former appeal, from which the writer of this opinion- dissented, that full satisfaction of the requirements of sec. 62.15 (3), Stats., was a prerequisite to- a valid contract, and that the city was prohibited from entering the contract without fully meeting the requirements of this section. After reviewing the authorities, the opinion states:
“Upon the authority of these cases it is held that a municipality has no power tO' make contracts for public improvements unless it proceeds in the manner prescribed by law, and that a contract entered into without complying with the charter provision is void.”
The following language from White Construction Co. v. Beloit, 178 Wis. 335" court="Wis." date_filed="1922-10-10" href="https://app.midpage.ai/document/white-construction-co-v-city-of-beloit-8193799?utm_source=webapp" opinion_id="8193799">178 Wis. 335, 338, 190 N. W. 195, was expressly approved:
“The city may enter into a valid contract in the way specified by law and not otherwise. This is a limitation upon the right of the city to- contract which the legislature has a right to create and we are not disposed to construe it away.”
With the holding upon the former appeal in mind, we direct our attention to the case of Shulse v. Mayville, 223 Wis. 624" court="Wis." date_filed="1937-02-09" href="https://app.midpage.ai/document/shulse-v-city-of-mayville-8199182?utm_source=webapp" opinion_id="8199182">223 Wis. 624, 629, 630, 271 N.W. 643" court="Wis." date_filed="1937-02-09" href="https://app.midpage.ai/document/shulse-v-city-of-mayville-8199182?utm_source=webapp" opinion_id="8199182">271 N. W. 643, which fully reviews the authorities and sets forth the established doctrines applicable to recovery for unjust enrichment in cases involving void contracts. They may thus be summarized: (1) A municipality does not become liable by reason of any act of its officers or agents either for money, services, or goods where it had no power originally to make itself liable by contract. This applies to situations in which the municipality had no contractual power whatever with reference to the subject matter of the purported contract. (2) A municipality does not become liable for money, goods, or services upon prin
The second proposition laid down by the Shulse Case is plainly applicable here in view of the former holding by this court that the city of Wauwatosa was prohibited by statute
Summarizing very briefly, it is evident that in many fact situations there is no good reason why a municipal corporation should avoid the duty of paying for benefits conferred in good faith under merely void or irregular contracts, and the courts have tended impose this duty where the case involved nothing more than this. Where, however, the situation is that outlined in the following quotation from Woodward, Quasi Contracts, p. 261, § 161, the great weight of authority denies a recovery in restitution:
“If the irregularity is such as to deprive the municipality of the protection of a safeguard against the extravagance or*660 corruption of its officers — as a substantial failure to comply with a requirement that contracts shall be let to the lowest bidder after due publication of notice — recovery should be denied.”
The matter is thus put in Restatement, Restitution, p. 241, § 62:
'“A person otherwise entitled to’ restitution of a benefit conferred by mistake is disentitled thereto if restitution would seriously impair the protection intended to be afforded by common law or by statute to persons in the position of the transferee or of the beneficiary, or tO' other persons.”
One of the illustrations to this section is as follows, p. 243:
“In state X a statute provides that no contract for work to be done for a municipality where the contract price exceeds $10,000 shall be made unless it has been passed upon at regular session of the municipal council duly called. A contracts with the city of Y for dredging for the price of $50,000, the contract being approved only by the municipal officers. Upon completion of the work, A is not entitled to reasonable compensation from Y although he believed that the council had approved the contract or although he did not know of the statute.”
It follows that the statements in Shulse v. Mayville, supra, which are decisive of this case, as well as holdings to the same effect in Journal Printing Co. v. Racine, 210 Wis. 222" court="Wis." date_filed="1933-01-10" href="https://app.midpage.ai/document/journal-printing-co-v-city-of-racine-8197617?utm_source=webapp" opinion_id="8197617">210 Wis. 222, 246 N. W. 425; Cawker v. Central B. P. Co. 140 Wis. 25" court="Wis." date_filed="1909-06-03" href="https://app.midpage.ai/document/cawker-v-central-bitulithic-paving-co-8189598?utm_source=webapp" opinion_id="8189598">140 Wis. 25, 121 N. W. 888; and Chippewa Bridge Co. v. Durand, 122 Wis. 85" court="Wis." date_filed="1904-05-10" href="https://app.midpage.ai/document/chippewa-bridge-co-v-city-of-durand-8187942?utm_source=webapp" opinion_id="8187942">122 Wis. 85, 99 N. W. 603, are sustained by the great weight of authority, and however harsh the result may appear to be, the decisions are sound in principle if there is to be effective enforcement of mandatory statutes and avoidance of the circumvention of statutory prohibitions. This principle also makes impossible application of the doctrine of estoppel as a means of binding a municipality. Where creation of a con
The conclusion is inevitable that an action based on principles of quasi contract or restitution will not lie, and that the court should have sustained defendant’s demurrer.
By the Court. — Order reversed, and cause remanded with directions to sustain the demurrer to the complaint and for further proceedings according to law.