22 Wis. 301 | Wis. | 1867
Lead Opinion
We have carefully examined the evidence in this case, and think it sustains the finding of facts by the court below. This being so, an entirely different question is presented from that presented in Kneeland v. Milwaukee, 18 Wis., 411, or that in Wells v. Burnham, 20 Wis., 112, both of which cases involved the validity of the same sewer tax. In both of those cases it was a conceded fact, that no plan of the sewer was ever made, or filed in the comptroller’s office, as the law authorizing the work required. But in this case it was proved that a plan was made and left in the comptroller’s office, and that it was fully adequate to enable bidders to make a reasonably accurate estimate of the work, being as full and definite as such plans are usually made by competent architects and engineers. This must he held sufficient. The law, in requiring a plan, could only have intended a plan as full, and'perfect as it is usual for persons of competent skill to make of such works.
It is true, the cpst could not be estimated with perfect accuracy without knowing the number of the man-holes, and how they were to he constructed. But it was shown
So also there was an uncertainty in the kind of cement to be used. Such reservations, creating uncertainty as to the amount of work, or quality of materials, in contracts for public works which are required by law to be let to the lowest bidder, should be closely watched. They are of a dangerous tendency, and ought not to be encouraged. The danger is, that the bid may be put in upon an estimate for the highest amount of work, or for the best material, and then a less amount of work be performed, or an inferior quality of material used. But here it appears that the most expensive cement, was actually used. So that, although there might have been a wrong done to the property owners by this uncertainty in the kind of cement, if the prices were materially different, yet in fact there was none.
"We are of the opinion, therefore, that the slight uncertainty in regard to the number and mode of construction of the man-holes, in view of the testimony that it would have no effect upon the bids, ought not to defeat the validity of the entire proceeding; that notwithstanding that, and the original uncertainty in regard to the cement, there was a substantial compliance with the requirements of the law, and no injustice done to the property owners.
By the Court. — The judgment of the circuit court is affirmed.
Rehearing
The appellants moved, for a rehearing.
The argument of the appellants’ counsel on the motion for a rehearing has not changed our views as expressed in the opinion already filed. It is simply idle to say that this case presents the same questions that were presented in the jKneeland case, and other cases, involving the validity of this sewer tax. ■ It was, as already stated in the former opinion, an admitted fact in those cases, that no plan of the work was ever made or filed in the office of the comptroller, as the law required. '
In this case it was proved that such a plan was made, and was filed in that office. Eor we think there is no force in the suggestion that it was not filed because it was not so marked by that officer. The intention of the law was that the plan should be placed in that office for the inspection of those who wished to bid. And when so placed there, it was filed there, within the meaning of the law, and its object was fully accomplished. It was not a paper of the kind that are usually endorsed as filed.
It was also proved by an overwhelming amount of evidence, that this plan was as full and specific as it is usual for competent engineers to make of such work. And to say, merely because it appeared in the Kneeland case that some plan or profile of the work was in existence, but in another office where the law did not require it to be placed, and of the nature and character of which there was no adequate-evidence, and it being an admitted fact in the pleadings that no plan had ever been made or filed in the comptroller’s office, that the facts presented in that case were the same as those now presented, is to say' what the record does not sustain.
The objection that there was a lower bid than Burnham’s was not noticed before, because it seemed to ns to have no weight. The facts were, that Burnham got his hired man to allowhi bid to be put in in his name, which was lower than
It is also claimed that we have overruled the decision in Kneeland v. Furlong et al., 20 Wis., 437; because Justice DowneR remarked in that case that the notice of the letting of public work “ should,” among other things, specify “ the time within which it is to be finished.” That remark is contained in the opinion; but the decision certainly did not turn upon that point. And it is material to notice the facts of that case, to understand its legitimate application. It appeared in that case by the notice actually given, that the work was required to be “ commenced immediately on the execution of the contract, and completed without delay.” Row, in such a case as that, it is much more'material that the notice should state the time, than it is in cases where there is no special reason for haste. Such was the fact in the contract for building the Walker’s Point bridge, mentioned by the witness Burke in this case. A thoroughfare in a large city is obstructed by a broken bridge. It is desired to have
The fact that persons who have incautiously relied on the former cases, as settling finally the law concerning this tax, may suffer hardships, we regret; but it has no bearing upon the legal question. It has not resulted from any change of decision, for we have made none. "We have only held that a decision made upon one state of facts is not applicable to a new and entirely different state of facts.
By the Court. — The motion for a rehearing is denied.
