210 Wis. 222 | Wis. | 1933
The case is before the court upon appeal from an order of the circuit court for Racine county sustaining a demurrer to an amended complaint which alleges that the city engaged the plaintiff to print the common council proceedings and do miscellaneous advertising and furnish pamphlets of the council proceedings in accordance with a custom of ten or twelve years’ duration; that the plaintiff began performing the service; that it performed such services from May 23 to December 5, 1930, which were reasonably worth $2,905.55, of which only $455.90 was paid; and that the city refuses to make any further payments. Judgment is demanded for $2,449.65.
The matter of the publication of the council proceedings and doing the city advertising is governed by statute. Sec. 62.10, Stats., provides for advertising for bids containing separate proposals to publish the proceedings and doing the advertising and that the successful bidder shall execute a contract and file such bond as the council shall require; that no paper shall receive more or less than the contract price nor any other compensation for the work; and that “the paper securing the contract . . . shall be the official city newspaper.” Secs. 62.09 (10) and 62.15 (12) designate how all contracts of the pity shall be executed and countersigned. Sec. 62.11 (3) (d) provides that an “aye” and “nay” vote shall be taken on any measure creating a liability. Sec. 331.25 fixes the maximum legal rate for publishing any notice or advertisement required to be published by law at not over one dollar per folio for the first insertion and seventy cents for any subsequent insertion.
The appellant seeks to avoid the effect of these decisions by saying that they go upon the idea of preventing fraudulent violation of statutory requirements and do not cover innocent and harmless failure to follow them, and that as here no injury resulted to the city through-the ignoring of statutory requirements; recovery for the reasonable value of the services of which the city has received the benefit should be allowed. This ignores the provision of sec. 62.10 that no paper shall receive more or less than the contract price fixed by cpmpetitive bidding, and ignores failure to allege
Murphy v. Paull, 192 Wis. 93, 212 N. W. 402, held that where money was borrowed from a bank by village authorities to complete and was used to pay for completion of a municipal lighting service for which insufficient funds had been vote.d originally, and the fact of the expenditure was known to the electors and acquiesced in by them, of which service the village had long received and was still receiving the use, action lay for recovery of the money. It is pointed out in this case that the circumstances were such that competitive bidding was impossible.
MacLeod v. Washburn, supra, comes nearer than any other case to supporting the contention of appellant. It was an action to recover for services of an attorney in litigation connected with assessments for construction of a .sewer. There was no elected or appointed city attorney and the mayor had engaged the plaintiff to defend ten suits against the city. The city council knew of and acquiesced in the employment and the performance of the services, and finally by resolution acknowledged the lawful employment of the
“Whenever a city charter requires public work to be let to the lowest bidder ‘it has been uniformly held that the failure to call for bids in the prescribed way ... is fatal to the proceeding.’ . . . ‘The law requiring contracts to be let to the lowest bidder is based upon public economy. . . . It is of great importance to taxpayers, and ought not to be frittered away by exceptions.’ . . . The legislature having seen fit to hedge about municipal action by restrictions so obviously of value to the body politic, it is not for the courts to alter or vary them.”
By the Court. — The order of the circuit court is affirmed.