154 Wis. 422 | Wis. | 1913
The appellants assert that the demurrer to the answer relates back to the complaint, challenges its sufficiency, and that it appears upon facts pleaded and not controverted that no cause of action exists against the defendant. There is no dispute as to the above stated facts, and from them it appears that the plaintiffs demand recovery of the sum of $734 from the defendant for the benefit of the city of Green Bay. It is alleged that the defendant caused this sum to be paid to Hill, the contractor, as damages for an alleged delay in paying what was due him on the contract for the pavement of the city street without any legal right to do so.
The plaintiffs’ right to maintain this action is questioned upon the ground that a private person as a resident and taxpayer cannot sue to recover money actually paid out by the city. It is contended that such persons have the right only to protect their interests and those of the public generally by means of an injunction to prevent unlawful appropriation and squandering of the public funds. It is apparent from the facts that the city mayor and a majority of the common council, who participated in the authorizing of this appropriation and the payment thereof out of the city treasury, would not take the necessary steps to institute an action to recover
It is also claimed that since the defendant's acted in good faith in allowing the claim, and their action in the matter being of a quasi-judicial nature, no liability exists against them under the facts pleaded.
These contentions present the question whether or not this claim has any legal foundation in the terms of the contract, and, if the contract imposes no such obligation, was there a proper claim presented to the common council in the nature of damages so as to confer jurisdiction on that body to allow it as a claim for damages suffered by the contractor on account of some tortious conduct of the city officers in respect to this contract for the improvement of the street. The facts pleaded show that the members of the common council who acted on this claim treated it as a proper allowance to the contractor, Hill, to compensate him for being deprived of the use of the money which was to be paid him for completing the work, from December 13, 1910, to the date of its acceptance by the street and bridge committee of the common council on July 7, 1911. On July 7th the street and bridge committee recommended acceptance of the work and that certificates and bonds be issued by the city against the abutting property owners for the amounts theretofore assessed. It appears that the city council adopted these recommendations of
It appears that Hill did not file a verified claim with the city for interest as damages for delay in paying bim the amount due for work done. the charter of the city of Green Bay (Laws of 1882, cb. 169), cb. IX, sec. 1, provides: “the common council shall have power to audit, adjust, and allow claims and demands of every nature against the city, except such claims or demands as are1 payable out of the school fund;” and by sec. 5 of said chapter it is further provided: “No claim or demand whatever shall be allowed by the common council, unless the same is verified by the owner thereof or some person in bis behalf.”
The negative form of the last provision, following the preceding affirmative grant of power to deal with claims and demands, shows that a claim against the city, such as one for interest in the nature of damages, cannot be entertained by the common council unless it is properly verified as required by these provisions. The negative words, coupled with an affirmative grant of power, to audit and allow claims and demands, import that the provisions of the grant are mandatory and not directory merely. Bladen v. Philadelphia, 60 Pa. St. (10 P. F. Smith) 464; State ex rel. Shaw v. Thompson, 21 N. Dak. 426, 131 N. W. 231. This principle was affirmed by this court in the following cases: Appleton W. W. Co. v. Appleton, 136 Wis. 395, 401 (117 N. W. 816) and cases there cited; Northern T. Co. v. Snyder, 113 Wis. 516, 534, 89 N. W. 460.
Under, the facts alleged in the complaint and answer admitted upon this demurrer, it appears that the members.of the common council and the mayor of the city who audited and allowed this claim of the contraptor and directed the
By the Court. — The order appealed from is affirmed.