#### Wells vs. Burnham, impleaded with the City of Milwaukee and others.

*Assessments for local improvements*— Letting *contract to lowest bidder*— Requisites *of notice.*

1. The decision in *Kneeland vs. The City of Milwaukee and*others, 18Wis., 411, adhered to.

2. Where the street commissioners of a city are required by law to let contracts for city improvements to the lowest bidder, a violation of that provision must always be regarded, *prima facie*at least, as “affecting the substantial justice of the tax” levied to pay for such an improvement.

3. Where the work to be done, the manner or style in which it is to be done, and the materiabto be used, are not definitely described in the plans and specifications upon which the proposals are invited, and in the contract, but are left *113without necessity to the discretion or oral directions of the commissioners, the provision of law requiring the contract to be let to the lowest bidder is violated.

4. In an action to have certain taxes assessed to pay for the construction of a sewer in the city of Milwaukee under eh. 213, Gen. Laws of 1863, declared invalid, *Held,*that if “ no plans for said sewer had ever been made, and the specifications did not show the grade of the proposed sewer, nor the depth of the excavations of the trench, nor the manner and style of the construction of the manholes therein,” the contract was void and the tax invalid.

APPEAL from tbe Circuit Court for *Milwaukee*County.

Action to restrain tbe issue of deeds for plaintiff’s lots on "Wells street, in tbe city of Milwaukee, upon certificates of sale thereof for certain special taxes assessed thereon for tbe amount of street commissioners’ certificates of work done in constructing a sewer in said street. See *Kneeland v. The Oity of Milwaukee et al, 18*Wis., 411. Tbe contract entered into between tbe street commissioners and tbe defendant Burnham, for tbe construction of said sewer, is set out in full in tbe complaint, and contains tbe following among other provisions: “ Said work to be done in accordance with tbe plans and specifications therefor on file in tbe office of tbe city comptroller, to which reference is bad, and which are made part of this contract.” “Said party of tbe first part shall also construct well boles [man-boles] with eight-inch brick wall from tbe top of tbe sewer to tbe surface of tbe ground, *as directed by said street*commissioners, at each and every alley crossing said Wells street, and, where there is no alley crossing, *at such intervals and places as said street commissioners*may direct. ” Tbe complaint alleges that no plans for said sewer were ever filed in tbe office of tbe city comptroller as required by tbe act authorizing tbe building of tbe same (cb. 213, Gren. Laws of 1863); and that tbe specifications filed in said office (of which a copy is given) did not show tbe number, dimensions, form, thickness of walls, materials, or manner or style of construction of tbe man-boles mentioned therein and in said contract, and did not show tbe grade of said proposed sewer, nor tbe depth of tbe excavation of tbe trench therefor.

*114Tbe defendant *Burnham*demurred to tbe complaint, on tbe grounds tbat tbe court bad no jurisdiction of tbe subject matter ; tbat there was a misjoinder of parties defendant; and tbat tbe facts stated did not constitute a cause of action. From an order overruling tbe demurrer, *Burnham*appealed.

*Butler & Cottrill*for appellant:

1. Tbe complaint does not sbow tbat tbe plaintiff bas been substantially aggrieved by tbe alleged omissions in regard to tbe tax in question. *Mills v.*Gleason, 11 Wis., 470; *Warden v, /Supervisors &c.,*14 id., 618 ; *Deanv. Gleason,*16 id., 1; *Smith v. Cleveland,*17 id., 556; *Stokes v. Knarr,*11 id., 889; *Able-bleman v. Moth,*12 id., 81; *Bond v. City of Kenosha,*17 id., 284; *Kersey v. Supervisors,*16 id., 185 ; *Wakeley v. Nicholas,*id., 588; *Mills v. Johnson,*17 id., 598. 2. Tbe charter of tbe city of Milwaukee and all its amendments are public acts, of which tbe court will take judicial notice. *Clark v. Janesville,*10 Wis., .136; *Terry v. Milwaukee,*15 id., 490; E. S., chap. 5, sec. 2. Tbe special act under which tbe tax in question was levied, is an amendment to tbe charter ; and hence tbe tax is subject to tbe rule in sec. 19, chap. 8 of tbe charter, which declares tbat all tbe charter jn’ovisions relative to the levy of taxes, either general or special, shall be directory merely, and tbat no omission to follow them, “not affecting tbe substantial justice of tbe tax,” shall invalidate it. Under this provision it must be shown, not tbat tbe informality may affect tbe substantial justice of tbe tax, but tbat it actually *does*affect it. *Myrick v. La Crosse,*17 Wis., 442, is therefore not applicable on this point; while it supports tbe first point above made. Tbe legislature bad tbe power to enact said sec. 19. *Mills v. Gleason, supra.*

*Joshua Stark,*for respondent,

as to tbe jurisdiction of tbe court, cited *Dean v.*Madison, 9 Wis., 402, 405-8; *Knowlton v. Mock Co.,*id., 410, 417; *Weelcs v. Milwaukee,*10 id., 242 ; *My-rick v. La Crosse,*17 id., 442; *Mitchell v. Milwaukee,*18 id., 92 ; *Kneeland v. Milwaukee,*id., 411; 4 Kern., 9; 8 Ind., 84; 18 Md., 254; 2 Ham., 72; 5 Minn., 95 ; 2 Story’s Eq. Jur., §955, *115a ; 4 Mylne & C., 254. As to the plaintiff’s canse of action, he cited *Myrick v. La Orosse, Mitchell v. Milwaukee,*and *Knee-land v. Milwaukee, supra.*

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 *116they 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.