156 Wis. 663 | Wis. | 1914
Lead Opinion
If tbe. law of 1913 (quoted in tbe statement of facts) be a valid law, and if it applies to tbe case in band, there can be no doubt that tbe complaint states a good cause of action in equity. In such case tbe erection of tbe courthouse as contemplated by tbe contract would be a violation of law, and it is a well settled principle that tbe expenditure of corporate money for an unlawful-purpose may be enjoined by a taxpayer suing on behalf of himself and all other taxpayers. Webster v. Douglas Co. 102 Wis. 181, 77 N. W. 885, 78 N. W. 451. So tbe legal questions arising are, (1) Is tbe law a valid law? and (2) Does it apply to tbe present case1? and these questions will be briefly'considered.
1. Tbe appellants claim that tbe law of 1913 is unreasonable and discriminatory, but it is plain that no such claim can prevail because tbe question of tbe proper location of a courE bouse is a governmental question, which is solely for tbe state • to decide as it deems best, and that decision is not open to question by tbe county or tbe courts. In governmental matters tbe county is simply tbe arm of tbe state.; tbe state may direct its action as it deems best and tbe county cannot complain or refuse to obey. Tbe arm is not to be beard to chai-
2. The law went into effect August 4,-1913, and in terms applies to courthouses “hereafter” erected. As the construction of the Racine courthouse has not yet commenced, it is within the express terms of the law.
It is said that if the law be held to apply to the present case it will impair the obligations of the building contracts. Not so, however. The state may breach its contract if it will, subject to the payment of damages. This is not impairing the obligations of a contract. It is because the obligations of' a contract are unimpaired that damages may be recovered for their breach. Lord v. Thomas, 64 N. Y. 107; Danolds v. State, 89 N. Y. 36; Chalstran v. Board of Ed. 244 Ill. 470, 91 N. E. 712. Equity will not enforce the specific performance of a building contract like the present against private persons and much less against the public. 36 Cyc. 581; Kendall v. Frey, 74 Wis. 26, 42 N. W. 466. The public interest may demand the breach even at the expense of responding in damages.
By the Court. — Order affirmed.
Dissenting Opinion
(dissenting). (1) I think ch. 746, Laws of 1913, is invalid as against the appellants who are contractors because it impairs the obligations of their contracts if it applies to their existing contracts as ruled by the majority opinion. Green v. Biddle, 8 Wheat. 1.
(2) I do not think a taxpayer is so affected that he can maintain such an action as this, because his taxes are not increased by the determination of the appellants to adhere to the contract entered into prior to the enactment of the statute in question. Bell v. Platteville, 71 Wis. 139, 36 N. W. 831; Linden L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493, 83 N. W. 851.
