Allen v. City of Janesville , 35 Wis. 403 ( 1874 )

LyoN, J.

It is argued on behalf of the defendant by the learned city attorney, 1. That the power of the common council of the city of Janesville to repair and improve the public streets in that city, is entirely a statutory power; and 2. That if the council enter into a contract unauthorized by the statute to make such repairs or improvement, the city cannot in any case be bound thereby. We might hesitate to concede, to the extent claimed, the correctness of either of these propositions, at least without further investigation; but for the purposes of this case the concession may safely be made.

Waiving, then, all inquiry as to the inherent power of the city council, independently of the city charter, to charge the municipality with the expense of repairing and improving the public streets and • ways therein, we come directly to the question, Did the charter of the city of Janesville, in 1870, confer upon the common council the power to enter into the contract with the plaintiff, set out in the complaint ?

Section 18 of sub-chapter YI of the city charter (P. & L. Laws of 1866, ch. 474, p. 1150), is as follows : “ The common council shall have power to cause any street, highway, lane or alley, or any part of any street, highway, lane or alley in said city, to be graded, worked, graveled, macadamized, paved or repaved, planked or replanked, and repaired, and to cause any sidewalks, crosswalks, drains, sewers or culverts to be made therein, as it shall deem necessary, and the same shall be repaired or relaid as shall be ordered by said common council: provided, that no street, highway, lane or alley, or any part thereof, shall be graded, macadamized, paved or repaved, planked or re-planked, without a recommendation in writing, signed by a majority of the resident owners of property which is bounded by such street, highway, lane or alley on which said work is proposed to be done or improvement made, except as hereinafter provided, which recommendation shall be entered at length by the clerk npon the record of the proceedings of the common council.” The exception in the proviso does not affect this case.

The power thus granted to, the common council to make repairs and improvements of streets is full and-complete, with only the limitations contained in the proviso. We find no other restrictions on such general power in the charter or amendments thereto, in force in 1870, when the work in question was done. It is true that the charter contained many provisions prescribing and regulating the proceedings necessary to making the cost of repairs and improvements a charge upon specific lots ; but it contained no provision that the cost should in no event become a city charge. Those portions of the charter are not limitations upon the general power of the council to order such repairs and improvements. It will be conceded that ch. 140, P. & L. Laws of 1872, sec. 18, relieves the city from all liability for the cost of such works; but that act was passed long after the work in question was done, and after the legal rights and liabilities of the parties had become fixed under previous laws. It has no significance, therefore, in this case.'

The foregoing views are sustained by many adjudged cases, among which are the following: Foltz v. The City of Cincinnati, 2 Handy, 261; Sleeper v. Bullen, 6 Kan., 300; Mather v. Chicago, 38 Ill., 266; Chicago v. The People, 48 id., 416; Louisville v. Hyatt, 5 B. Monroe, 199; Kearney v. The City of Covington, 1 Met. (Ky.), 889. This doctrine is also recognized in Swift v. Williamsburgh, 24 Barb., 427, cited by the counsel for defendant.

It seems to us, therefore, that the common council had power to contract with the plaintiff to do the work in question, unless prohibited bjr the limitation contained in. the proviso in sec. 18 of the city charter.

The work consisted of (1) macadamizing, (2) curbing, (3) paving gutters, (4) excavation, and (5) graveling. Only the paving and macadamizing are within the limitation of the proviso, and these items are recommended by the requisite number of resident owners. It seems to us, therefore, that the common council had the power to make the contract with the plaintiff, on behalf of the city, to make such repairs and improvements.

It is also claimed on behalf of the city, that where the mode of contracting with the city is plainly prescribed and limited, that mode must be pursued, or the contract will not bind the city; and the counsel, in support of this proposition, cites Dillon on Munic. Corp., § 373, where the law is thus stated. In this case, while, as we have seen, a mode is prescribed for making the. contract so. that the cost of the work will become a charge upon specific lots, no limitation of the general power of the common council to make such contracts has been disregarded.

It is conceded by both parties, that the proceedings to charge the cost of the work upon specific lots are fatally and incurably defective, and that the cost thereof cannot now be so charged. This being the case, and the common council having had the power to make the contract with the plaintiff to do the work, the conclusion is irresistible, that the city must pay for the. work. The cases above cited are decisive to this effect.

Our conclusion is, that the complaint states facts sufficient to constitute a cause of action. It follows that the order of the circuit court sustaining the demurrer thereto must be reversed.

By the Court. — Order reversed.