H. Schmitt & Son, Inc. v. City of Milwaukee
200 N.W. 678
Wis.
1924
Check Treatment
Eschweiler, J.

The proposition whether the city ordinances and wage scale recited in the foregoing statement of facts are binding on the board of school directors of the same' city, superior to and controlling over any express or implied contrary provisions in any contract made by such board for the erection of a school building, embraces the one question here presented.

It must be conceded that the board of school directors rather than the common council have delegated to them under the statutes as they now stand the authority and power to select sites, adopt plans, and malee contracts for the erection of schoolhouses in said city. This is so although the statutes require that such contracts shall run in the name of the city, shall be countersigned by the city comptroller and approved by the city attorney.

This legislative authority is found in ch. 459, Laws of 1907, sec. 7 whereof provides, among other things, that such board of directors is authorized and required to establish and organize so many public schools, in addition to those already -there, as may be necessary for the accommodation of the children of the city entitled by the constitution and laws of the state to instruction therein. The same section expressly provides that such board shall erect, purchase, hire, or lease buildings for the accommodation of the public schools of such city.

It cannot be questioned, on the other hand, that the common council, under the city charter and the law, has, on its part, the exclusive power to provide for the erection of public buildings other than schoolhouses in said city.

The city ordinances and wage scale here involved were declared valid in the case of Wagner v. Milwaukee, 180 Wis. 640, 192 N. W. 994. It was there upheld squarely upon the doctrine announced in Milwaukee v. Raulf, 164 Wis. 172, 159 N. W. 819, sustaining an ordinance limiting the hours of employment on public work done for the city. Those cases as well as others on the same subject in this *122court and elsewhere are predicated upon the proposition that a city, as to contracts for public buildings which the city erects in its proprietary capacity, may, the same as a private individual or corporation, declare, within reasonable limitations at least, the terms and conditions upon which and under which work being done for it shall be performed.

Such ordinances, therefore, must be considered from that viewpoint and' with that foundation, rather than as ordinances passed by the same common council in the exercise of the so-called police power for the general welfare.

In this case the power to make this particular contract is not in the common council but in the board of school directors. The latter, not the former, have had delegated to them the function and power of making this contract, and in the legitimate exercise of such power they cannot be interfered with or controlled by regulations or conditions which may be prescribed by the common council for,buildings over which they in turn have exclusive power and control. The lines between the two are clearly marked and defined, and within their respective provinces neither can be controlled by the other. To hold otherwise and to sustain respondents’ contention would logically and necessarily permit the common council to dictate to the school board as to any other and all conditions of contracts for school buildings and would thereby permit the common council to do indirectly the very thing that the legislature has expressly directed shall be done by the school board.

We see no> substantial distinction between the situation here and that presented in State ex rel. Miller v. Niven, 180 Wis. 583, 194 N. W. 30. There it was held that the same ordinance here in question was not controlling over nor made a part of contracts entered into by the sewerage commission of that city acting under the authority given by ch. 608, Laws of 1913, even though such contract as the one here was required to be in the name of and on behalf of the city and to be approved of by the city attorney as to *123form and execution. That express power was given in that chapter 608, supra, • to the sewerage commission to make specific provisions in its contracts as to hours of labor and wages does not make a substantial difference from the case at bar. That the legislature deemed it proper as to such special body as was there created to give express authority to so provide, in no wise militates against the construction here given to the broad and general language in the exclusive grant of the contract power to the school board to erect schoolhouses.

This disposition of the case makes it unnecessary to pass upon or express any opinion upon the question presented and argued as to the precise legal status of the school district as such, or to consider or apply what has been said in such cases as Columbus v. Fountain Prairie, 134 Wis. 593, 115 N. W. 111; Free High School Dist. v. Fountain Prairie, 154 Wis. 564, 143 N. W. 657; State ex rel. Hathaway v. Mirlach, 174 Wis. 11, 182 N. W. 331.

It follows from what has been said that the demurrer to the complaint should have been overruled for the reason that the ordinance of the city of Milwaukee relied upon by the respondents did not control or govern as to this contract by the school board for the erection of a school building in the city of Milzvaukee.

By tJze Court. — Order reversed, and cause remanded for further proceedings according to law.