Wells v. Burnham , 20 Wis. 112 ( 1865 )

Downer, J.

This case must follow that of Kneeland v. The City of Milwaukee et al., 18 "Wis., 411. We are urged, however, to review the opinion in that case and overrule it, because, it is said, chapter 218, laws of 1863, under which the sewer was constructed, is an amendment to the charter of the city of Milwaukee, and hence the tax in question is subject to the provisions of sec. 9, chapter 8 of the charter, which is as follows : “ All the directions hereby given for the assessing of lands, and the levying and collection of taxes and assessments, shall be deemed only directory, and no error or informality in the proceedings of any of the officers entrusted with the same, not affecting the substantial justice of the tax itself, shall vitiate or in any way affect the validity of the tax or assessment.”

The opinion in the case of Kneeland v. The City of Milwaukee construes the act of 1863 by itself; and is to the effect that the contract to do the work was void, because certain things, which were conditions precedent to making the contract, were not done. We think that case was correctly decided. But if we are mistaken, and the law of 1863 is subject to the rule of the charter prescribed in sec. 19, chap. 8, still it appears to us that the rule cannot affect that provision of the act of 1863, or of the charter, which requires contracts to be let to the lowest bidder. A violation of that provision must always, prima facie at least, affect the substantial justice of any tax in a case similar to this. We think it clear that the contract was let in violation of that provision. To comply with that part of the act, the contract, plans and specifications should describe and specify definitely the work to be done, the manner or style in which it is to be done, and the material to be used. To leave these, or any of them, when there is no necessity for it, to the discretion or verbal directions of the commissioners, so that they can increase or diminish, ad libitum the cost of the work, would practically annul the law. It would be no more a violation of that law to let a contract for tbe entire work to be done in suck manner and of suck material as tke commissioners should direct, than it would be to leave any considerable portion of tke work or material, when there was no necessity for it, to tke discretion of tke commissioners. When, therefore, tke plaintiff avers “ that no plans for said sewer have ever been made; and that tke specifications did not show or specify the grade of said proposed sewer, nor tke depth of tke excavations of tke trench, nor tke manner and style of tke construction of tke man-koles therein,” it showed suck omissions of tke requirements of tke act as to make tke contract void, because no one could bid for tke contract intelligently without making large allowances for work which might or might not be required to be done, or to be done in a manner or style more or less expensive, according to tke discretion of tke commissioners. Suck omissions or uncertainty or indefiniteness as to tke work to be done, at least prima facie, increase tke contract price. They may to some extent prevent competition in bidding. Tke law requiring contracts to be let to tke lowest bidder is based upon public economy, and originated perhaps in distrust of public officers whose duty it is to make contracts. It is of great importance to tax payers, and ought not to be frittered away by exceptions. Contracts made in violation of it have been held void, and we think rightly. Brady v. The Mayor of New York, 20 N. Y., 312; Mitchell v. City of Milwaukee, 18 Wis., 92.

By the Gowrt. — The order of tke circuit courtis affirmed.