Sturzl Construction Co. v. City of Green Bay

276 N.W.2d 771, 88 Wis. 2d 403, 1979 Wisc. LEXIS 1918
CourtWisconsin Supreme Court
DecidedMarch 27, 1979
DocketNo. 76-126
StatusPublished

This text of 276 N.W.2d 771 (Sturzl Construction Co. v. City of Green Bay) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sturzl Construction Co. v. City of Green Bay, 276 N.W.2d 771, 88 Wis. 2d 403, 1979 Wisc. LEXIS 1918 (Wis. 1979).

Opinion

WILLIAM G. CALLOW, J.

The issue presented m this appeal is whether, under the general charter law provisions of Chapter 62, Stats., the Mayor of Green Bay had authority to veto a Common Council action adopting the recommendation of the Board of Public Works to award a repair contract to Sturzl Construction Co., Inc., of Green Bay. We hold that the provisions of sec. 62.16, Stats., relating to the letting of public works contracts, foreclose by necessary implication the exercise of a mayoral veto over a Council action adopting the recommendation of the Board of Public Works.

Sturzl is a masonry construction firm specializing in the installation and repair of streets, sidewalks, and curbings. In 1975 Sturzl and other firms were the subject of a John Doe investigation concerning possible bidrigging in violation of Chapter 133, Stats. During that investigation the city of Green Bay enacted an ordinance containing the following language:

“1.07 (4) (e) Any corporation, firm or individual violating Section 133.01 of the Wisconsin Statutes (1973), or any subsequent amendment thereof, shall upon conviction thereof be thereby disqualified as a bidder on any City of Green Bay project for a period of three (3) years from the date of such conviction; however, nothing herein shall be interpreted to preclude such corporation, firm or individual from completing any and all contracts he may already have with the City at the time of such conviction, nor shall this ordinance be applied retroactively to convictions occurring prior to the adoption and publication of this ordinance. This prohibition applies with like force to officers of convicted corporations, firms or individuals who thereafter have business interest in new corporations or business enterprises of whatever kind or description.”

Sturzl entered a plea of nolo contendere to a charge of violating sec. 133.01, Stats. Judgment of conviction was [405]*405entered immediately before sec. 1.07 (4) (e) became effective.

Subsequently, Sturzl submitted a sealed bid for a Green Bay street and sidewalk repair contract in April, 1976. The Green Bay Board of Public Works recommended to the Green Bay Common Council that Sturzl, as the low bidder, be awarded the contract. The Council, by a vote of 19 to 5, adopted the Board’s recommendation. The Mayor vetoed the Council’s approval of the Sturzl contract. The veto letter of May 7, 1976, reads in part as follows:

“President and Members of the Common Council
“Dear Members of the Council:
“Under the provisions of 62.09(8) (c) I am returning the below listed resolutions and actions of the Common Council to the City Clerk filing my objections. This constitutes a veto of those actions. Applying my signature to contracts, resolutions, bids, reports on behalf of the people of the City of Green Bay or allowing these to pass without my signature constitutes an endorsement by the Mayor in behalf of the people as to the fiscal responsibility, quality of workmanship and moral integrity of the bidders involved. I must veto the resolutions and certain contracts listed below because I cannot yet assert my acceptance as responsible bidders and quoters all of the firms involved. Further, I cannot by law exercise a partial veto.
“Further, it cannot enhance our civil suit with bid riggers to offer them contracts with our recognition that they are responsible people.
“There are economic pitfalls and practical expediencies at risk, but no one has ever said that the integrity of the people would be cheap. Surely that integrity is worth a one-time risk.
“I, therefore, return to you the following resolutions and actions as vetoed:
[406]*406“A motion to accept the bid of Sturzl Construction Company on sidewalk and pavement repair — 1976 as passed at special meeting of the Board of Public Works May 4, 1976.”

Council members failed to secure the necessary three-quarters vote to override the veto, voting 15 in favor of overriding, 9 against. The Board readvertised for bids on the contract. Sturzl was underbid by a competitor who was awarded the contract.

Sturzl sought a writ of mandamus to compel the City Clerk, President of the Board of Public Works, and the Mayor to execute the contract with Sturzl. Concurrently Sturzl brought an action seeking specific performance of the Sturzl contract for sidewalk and paving repairs and for an injunction restraining the City from reletting the contract and other just and equitable relief. The actions were consolidated.

From a judgment filed August 9, 1976, quashing the writ and dismissing the complaint, Sturzl appeals, maintaining generally that the Mayor lacked authority to veto the Council action adopting the Board’s recommendation that the contract be awarded to Sturzl.

Sec. 62.09(8) (a) and (c),1 Stats. 1973, provides:

“(8) Mayor, (a) The mayor shall be the chief executive officer. He shall take care that city ordinances and state laws are observed and enforced and that all city officers and employes discharge their duties.
“ (c) He shall have the veto power as to all acts of the council, except such as to which it is expressly or by necessary implication otherwise provided. All such acts shall be submitted to him by the clerk and shall be in force upon his approval evidenced by his signature, or [407]*407upon his failing to approve or disapprove within five days, which fact shall be certified thereon by the clerk. If he disapproves he shall file his objections with the clerk, who shall present them to the council at its next meeting. A three-fourths vote of all the members of the council shall then make the act effective notwithstanding the objections of the mayor.”

We are called upon to interpret the legislative intent in the application of the statutory provisions for letting public works contracts and the limitation on the veto authority of the mayor. The mayor’s veto power extends to “all acts of the council, except such as to which it is expressly or by necessary implication otherwise provided.” Sec. 62.09(8) (c), Stats. 1973.

The question presented is whether these provisions come within the exception of sec. 62.09(8) (c), Stats. 1973, and “necessarily imply” a limitation on the mayor’s authority to veto acts of the council relating to the award of public works contracts. An appropriate definition of necessary implication is found in United States v. Jones, 204 F.2d 745, 754 (7th Cir. 1953) (on petition for rehearing) :

“Necessary implication refers to a logical necessity; it means that no other interpretation is permitted by the words of the Acts construed; and so has been defined as an implication which results from so strong a probability of intention that an intention contrary to that imputed cannot be supported.”

The veto power limit must be more than an inference; it must be the only logical inference. In considering whether sec. 62.15, Stats., circumscribes the mayor’s veto power over the council’s approval of the board’s recommendation on a public works contract, the following considerations are important.

The specific procedure governing public works contracts is set forth in sec.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Jones
204 F.2d 745 (Seventh Circuit, 1953)
Blum v. City of Hillsboro
183 N.W.2d 47 (Wisconsin Supreme Court, 1971)
Bechthold v. City of Wauwatosa
280 N.W. 320 (Wisconsin Supreme Court, 1938)

Cite This Page — Counsel Stack

Bluebook (online)
276 N.W.2d 771, 88 Wis. 2d 403, 1979 Wisc. LEXIS 1918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sturzl-construction-co-v-city-of-green-bay-wis-1979.