#### Cawker and others, Executors, etc., Respondents, vs. Central Bitulithic Paving Company, imp., Appellant.

*May 12*

June *3, 1909.*

*Pleading: Demurrer: Constitutional law: Special laws: Defective municipal contract: Curative act: Ratification by municipality: Action:*Quantum meruit.

1. Where a taxpayer has brought an action against a city and a paving contractor to enjoin the collection of the contract price, an affirmative claim set up by the contractor by cross-complaint against the city for a recovery on implied assumpsit, if sustained, defeats the taxpayer’s action, and hence he may challenge the legal sufficiency of the cross-complaint on demurrer.

2. Ch. 677, Laws of 1907, purporting to validate certain classes of paving contracts theretofore made by “any municipal corporation of the first class,” relates to the city of Milwaukee, which is the only city then or ever theretofore in the first class of cities by legislative classification according to population, and relates wholly to past conditions. It is therefore a special law amending the charter of that city and within the condemnation of secs. 31, 32, art. IV, Const.

.3. Where a municipal paving contract is invalid for failure to comply with charter requirements, the city cannot thereafter validate it by ratification without compliance with such charter provisions.

4. Where a street-paving contract is void for failure to comply with charter provisions, the contractor cannot go on and complete it and recover upon *quantum meruit.*

Appeal from an order of tbe circuit court for Milwaukee county: W. J. Turner, Circuit Judge.

*Affirmed.*

Tbe appeal is from an order sustaining a demurrer to tbe supplemental answer, counterclaim, and cross-complaint of tbe appellant.

Eor tbe appellant there was a brief by *Winkler, Flanders, Bottum & Fawsett,*attorneys, and *James O. Flanders*and *J. M. Head,*of counsel, and oral argument by *Mr. Flanders.*

Among other references upon tbe part of tbe appellant were tbe following: Secs. 18, 31, art. IV, Const.; *Adams v. Beloit,**26105 Wis. 363, 81 N. W! 869; *Warner v. Knox,*50 Wis. 429,, 7 N. W. 372; cb. 322, Laws of 1875; *Gawlcer v. Gent. B. P. Go.*133 Wis. 29, 34, 113 N. W. 419; *Boyd v. Milwaukee,*92' Wis. 456, 66 N. W. 603"; *Johnson v. Milwaukee,*88 Wis. 383, 60 N. W. 270; *Evans-Snyder-Buel Go. v. McFadden,*105-Fed. 293; *Stevens Point B. Go. v. Reilly,*44 Wis. 295; *Thomson v. Elton,*109 Wis. 589, 85 N. W. 425; *McGillivray v. Joint School Dist.*112 Wis. 354, 88 N. W. 310; *Rice v. Ash-land Go.*114 Wis. 130, 89 N. W. 908; *Schneider v. Menasha,.*118 Wis. 298, 95 N. W. 94; *Batch v. Beach,*119 Wis. 77, 95-N. W. 132; *Martin v. Fond du Lac Go.*127 Wis. 586, 106 N. W. 1095; *Appleton W. Go. v. Appleton,*132 Wis. 563, 113' N. W. 44; *Lawrence v. Milwaukee,*45 Wis. 306.

.For the respondents there was a brief by *Ryan, Ogden & Bottum,*and oral argument by *L. M. Ogden.*

Among other references upon the part of the respondents were the following: Oh. 677, Laws of 1907; *Allen v. Milwaukee,*128 Wis. 678, 106 N. W. 1099; *Ledebuhr v. Wis. T. Go.*115 Wis. 214, 91 N. W. 1012; *Bostwick v. Mut. L. Ins. Go.*122 Wis. 323, 99 N. W. 1042; *Chippewa B. Go. v. Du-rand',*122 Wis. 85, 95, 99 N. W. 603.

TiMLiN, J.

The plaintiffs, executors and trustees under the will of E. H. Cawker, deceased, as resident taxpayers of the Sixteenth ward of the city of Milwaukee, brought this suit on October 26, 1906, against the city of Milwaukee, certain of its officers, and the appellant, to enjoin the city and these officers from accepting certain street-paving work done1 by appellant, from countersigning or paying over to appellant any city order or orders in payment for such work, and to have the contract for siich work between appellant and the city adjudged void. This complaint was upheld against demurrer of the appellant in *Cawker v. Milwaukee,*133 Wis. 35, 113 N. W. 417. The appellant answered this complaint, and this answer contained what the pleader called a counter*27claim against tlie plaintiffs, and a cross-complaint against the city and its officers, and, among other forms of relief, demanded that the city authorities be required to make a reassessment in case the original special assessment was held void. There was a general demurrer by the plaintiffs, which was. overruled by the decision of this court in *Cawker v. Cent. B. P. Co.*133 Wis. 29, 113 N. W. 419, holding that the cross-complaint made a valid showing entitling the appellant to a. reassessment, but not passing upon other claims of the pleader, under the rule that if one good cause of action or defense be found in the pleading a general demurrer thereunto-must be overruled. Instead of proceeding to a reassessment, the appellant, after the cause was remitted to the circuit court, pleaded what it termed “a fourth and further answer and defense to the complaint.in this action and ... a counterclaim against the plaintiffs, and ... a cross-complaint against the city of Milwaukee” and its officers. The chief point in this supplemental pleading was that the paving contract in question was by a curative statute (ch. 677, Laws of' 1907, published July 18, 1907) validated, ratified, and confirmed by the legislature. By a “fifth cause of action and by way of counterclaim and cross-complaint, and also by way of answer and defense to the complaint in this action,” the appellant sought to recover from its codefendant, the city of" Milwaukee, the reasonable value of the material and labor expended in good faith and at the instance and request' of' the city in paving the street in question. The prayer following these two pleadings is that the complaint be dismissed,, the paving contract be declared affirmed and validated by ch. 677, Laws of 1907, and the city authorities authorized to pay for the work as provided in the contract; but if the contract -is. not thus validated and affirmed, that the appellant recover judgment against its codefendant, the city, for the reasonable value aforesaid, less payments credited thereon. To this-pleading the plaintiffs demurred on the ground that the same-*28did not state facts sufficient to constitute a defense to tbe action or a counterclaim against tbe plaintiffs. Tbe demurrer was sustained and tbe case is brought bere as stated.

Tbe unusual situation of tbe plaintiffs witb respect to tbis amended pleading is quite apparent, but, looking to tbe substance, anything in tbe nature, of an affirmative claim by tbe appellant against its codefendant, tbe city, which would entitle tbe appellant to a recovery on tbis contract or on such matters growing out of tbis contract against tbe city, must certainly defeat tbe taxpayers’ action to restrain such payment, and tbe plaintiffs may, treating such matters as a defense to their cause of action, challenge tbe legal sufficiency of such pleading on demurrer.

It is quite apparent that tbis new pleading raises only two points: (1) Is tbe curative statute (cb. 611, Laws of 1907) a valid law? (2) Can a contractor, after having entered into a contract in writing witb a city, invalid because failing to comply witb charter provisions designed to secure competition, after completing tbe paving work described in such contract, and after tbe acceptance of such work by tbe city, recover upon implied assumpsit tbe reasonable value of tbe work and materials done and placed in tbe street ? Tbe constitution of tbis state (art. IV, secs. 31, 32) forbids tbe enactment of any special law to amend tbe charter of a city, and requires tbe legislature to provide general laws for “the transaction of any business” thus prohibited, and requires that such general laws be uniform in their operation throughout tbe state. Tbe curative act in question applies “in all cases where any municipal corporation of tbe first class in tbis state shall have heretofore entered into any contract or contracts witb any person, firm or corporation for tbe construction of any pavement or pavements, which contract or contracts are illegal because requiring the use of patented materials in whole or in part,” etc. Milwaukee is tbe only city which now is, or which ever in tbe past has been, in tbis *29first class according to legislative classification by population. The act, relating wholly to past conditions, is therefore special, as much so as if the city of Milwaukee were expressly named therein. *Boyd v. Milwaukee,*92 Wis. 456, 66 N. W. 603. It is argued that this makes impossible the enactment of curative statutes relating to municipalities. But we do not see that any such result follows. We must hold that the curative statute in question is unconstitutional and void.

The contract between the appellant and the city was expressly adjudged to be invalid in *Cawker v. Milwaukee,*133 Wis. 35, 113 N. W. 417, for failure to comply with the charter provisions relating to contracts for the use of patented articles. These provisions were intended to secure and make effective competition between bidders. To now hold that the city might, without compliance with such provisions, ratify the contract and so validate it, or that the appellant might, notwithstanding the invalidity of the contract on this ground, go on and complete it and recover upon *quantum meruit,*would be to make these charter provisions practically ineffective. Former decisions of this court forbid such recovery by the appellant. *Chippewa B. Co. v. Durand,*122 Wis. 85, 99 N. W. 603, and cases cited in opinion; *Appleton W. Co. v. Appleton,*132 Wis. 563, 113 N. W. 44. The order sustaining the demurrer must be affirmed.

*By the Cowrt.*— It is so ordered.