Baumgartner v. City of Milwaukee

171 N.W. 667, 168 Wis. 641, 1919 Wisc. LEXIS 107

• Court: Wisconsin Supreme Court
• Decided: April 2, 1919
• Status: Published

Opinion

Rosenberry, J.

We are met at the threshold of this case by the objection that the plaintiff taxpayer has no right to maintain this action for the reason that the complaint does not show that the public treasury will suffer a substantial loss if the proposed action of the city and its clerk be not enjoined.

The allegation of the complaint is, “the city of Milzvau-kee will misappropriate a large sum of money and incur a large indebtedness, and this plaintiff and the taxpayers of said city will suffer great and irreparable injury therefrom.” These allegations are very general in their nature and are controlled by the specific allegations in the complaint as to the nature and amount of the threatened diversion of public funds. It must be said that it fairly appears from the complaint that the financial loss to the city if there is a readvertisement for bids will be the cost of the advertisement. Whether the readvertisement will produce a lower or a higher bidder than the Broadway Press, no one can say. If a lower bidder should appear, there will not only be no loss to the city but there will be a saving. If the lowest bidder in response to the readvertisement bids a sum higher than that bid by the Broadway Press, there might be a loss. . .

It does not appear what the cost of readvertisement will be. We know that it cannot be very much and must be a comparatively small sum.

It is said that Mueller v. Eau Claire Co. 108 Wis. 304, 84 N. W. 430, is conclusive as to the right of the plaintiff to maintain this action. In that case it appeared that the county board disregarded the lowest bid and let the contract to the next lowest bidder, the difference in the bids being $3. The right of the taxpayer to maintain the action was questioned and his right affirmed by the court. Speaking of the plaintiff taxpayers there, the court said:

“The fact that their ultimate pecuniary loss may be almost infinitesimal is not controlling. Their right to sue is not based alone upon á direct loss to them in the ultimate winding up of the transaction attacked. It rests rather upon the fact that an illegal contract has been entered into which will require a large amount of the taxpayers’ money to satisfy. In other words, a debt has been created without warrant of law, and the money of the taxpayer is about to be used for its liquidation. ... In contemplation of a court of equity, the loss to the county would be the- entire amount of the contract price to be paid on the illegal contract, and not the difference between the valid and void contracts.”

In'this case the court is not asked to enjoin the expenditure of public funds under an illegal contract. The plaintiff does not seek to compel the city to enter into a contract with the Broadway Press, but to prevent the expenditure of public funds for a readvertisement. In a proper case the city unquestionably has the right to readvertise. The sole injury threatened here is the expenditure of public funds for readvertisement.

The injury threatened in this case is not the expenditure of a large amount of public funds on an illegal contract, 'but to prevent the disbursement of a small amount for. .advertising. Not every irregular expenditure of public.funds will be enjoined at the suit of a taxpayer. Where a taxpayer sought to enjoin the issuance of a county order upon an audited account for services rendered to a poor person for which a town in the county was primarily liable, although the county would be liable over to the town, this court said:

“A taxpayer can successfully invoke the power of a court of equity to enforce a right of a public corporation when there is danger that such corporation will otherwise suffer some substantial injury which to some extent will affect the taxpayer. The power of taxpayers, in such an emergency, to set judicial machinery in motion, is a very valuable right, -but it must be kept within those reasonable limits which govern the administration of justice in courts of equity. The wrong existing or threatened must be one that will or may, if not properly met, cause some substantial loss to the corporation, else there is no warrant for calling the equity power of the court into activity.” Ebert v. Langlade Co. 107 Wis. 569, 573, 83 N. W. 942; Pung v. Derse, 165 Wis. 342, 162 N. W. 177.

The expenditure of a small sum of money for readver-tisement is not such a substantial diversion of public funds as would warrant the interference of a court of equity. The council may determine to let the contract to the Broadway Press; it may perhaps decline to publish the proceedings at all. In any event we cannot look into the future and anticipate and regulate future proceedings of the common council.

By the Court. — Order affirmed.