Kneeland v. City of Milwaukee , 18 Wis. 411 ( 1864 )

By the Court,

DixoN, C. J.

It is a conceded fact that no plan or plans for the sewer were ever made, and none ever filed in the office of the city comptroller. The specifications filed in the office of the comptroller did not show the grade, but referred to it as shown by a plan in the office of the city surveyor. The man holes were wholly omitted from the specifications, except that they were to be made opposite the alleys in the blocks between certain streets, and for the remaining portion at such places as the street commissioners should direct, at distances of not less than 400 feet. Their number was not fixed, and of their form and mode of construction nothing was said. They were left, as it is said, to the discretion of the street commissioners. It seems to us that these departures from the positive requirements of the act are fatal to the entire proceedings, and that the alleged taxes cannot be enforced. The authority of the commissioners was purely statutory, and, as to causing proper plans and specifications to be made and filed in the office of the comptroller, invested them with no discretionary power whatever. The plans and specifications were to be be made and filed before advertising for proposals for doing the work, and before the commissioners were authorized to award the contract. As in all cases where special power is conferred and the manner in which it is to be exercised is prescribed by statute, the validity of the acts of the commissioners depends upon their having proceeded, step by step, in strict conformity to the statute. They had no authority to dispense with any provision deemed essential by the legislature to the proper exercise of the power; and neither have the courts. The making and filing of the plans and specifications were conditions precedent to the power of the commissioners to award the contract. Myrick v. La Crosse, 17 Wis., 442. In such a case it is idle to argue that everything material to the work was, or might have been, included in the specifications, and that the legislature might, without damage to the public interest, have omitted the plans. Ita lex scripta est. It is enough that the legislature deemed the making of plans also essential, and that we can see that they might have been of some benefit to contractors and others in enabling them to form a correct estimate of the expense of the work. But if the plans were not indispensable, still the specifications were defective. They did not include all the items of labor and material which were required for doing the work. The grade was not specified, and there was nothing in the office of the comptroller to show what it was to be, or the nature and amount of the excavation. This was certainly very important to the contractor, who was to dig the trench and fill it up again at so much per lineal foot. The form and size of the man holes, and the manner in which they were to be constructed, were not fixed, and their number was left uncertain. The expense depended upon their dimensions, the thickness of the walls, and the manner of building them. These were very serious omissions in the specifications. They tended directly to enhance the prices for which the work would be undertaken by contractors, who would bid only with reference to such contingencies. They were, therefore, directly detrimental to the proprietors of the adjoining lots, who were to pay for the improvement in the form of taxes to be levied upon the lots. It is a general rule, when measures are authorized by statute in derogation of the common law, which may result in divesting the title of one person to land, and transferring it to another, that every requisite having the semblance of benefit to the owner must be strictly complied with. Atkins v. Kinnan, 20 Wend., 241, and cases cited. On the whole, we think that safety lies only in a strict adherence to the requirements of the statute, and that the proceedings of the commissioners cannot be sustained.

The judgment must be reversed, and the cause remanded with directions that judgment be entered for the plaintiff according to the prayer of his complaint.