Thompson v. City of Milwaukee

34 N.W. 402, 69 Wis. 492, 1887 Wisc. LEXIS 216

• Court: Wisconsin Supreme Court
• Decided: October 11, 1887
• Status: Published

Opinion

Cassoday, J.

1. The action is confessedly brought under sec. 3328, E. S. That section is a mere revision of ch. 150, Laws of 1873, omitting the state. Such revision must be regarded as á mere continuation of that chapter, and not as a new enactment. Sec. 4985, E. S. Ch. 332, Laws of 1878, provided, in effect, that any person who shall furnish any supplies or materials, or do or perform any labor or service, in the execution of any contract awarded by the board of public works of the city of Milwaukee, should have a lien for the amount due for such supplies, labor, or services, on the certificate or order to be issued to the contractor or contractors upon such contract: provided, however, that such laborer or material-man filed in the office of the city clerk of said city, within twenty days after such claim or demand should accrue, a petition or statement in writing, under oath, by the petitioner, setting forth the nature of such claim or demand, the amount due, the name of the contractor, and the date and nature of his contract with the city; with other limitations. That chapter went into effect April 9, 1878, and also provided, in effect, that “ ail contracts ” thereafter “ made by the board of public works of said city ” should “refer to and be made subject to the provisions of” that act. That chapter was in force before the present Revised Statutes, which provided that none of the general provisions therein should be construed so as to affect or repeal the provisions of any special acts relating to particular cities, unless such special acts were enumerated in the acts thereby repealed (sec. 4987), and said act was not so enumerated in sec. 4978, E. S. Besides, such provisions of the city charter, being at variance with the provisions of sec. 3328, E. S., were required by the Revised Statutes to prevail over said section, unless a different intention was plainly manifested. Sec. 4986. No such different intention was manifested therein. On the contrary, the legislature, by ch. 261, Laws of 1882, amended oh. 332, Laws of 1878, in several particulars, and, among other things, by making it clearly applicable to subcontractors, provided they filed the requisite notice “within twenty days after the date of the last charge.” There is no allegation in the complaint that any such notice was ever filed as thus required by the charter. Such allegation was clearly requisite, in order to state a cause of action against the city, under the charter. Benware v. Pine Valley, 53 Wis. 527; Wentworth v. Summit, 60 Wis. 281; McArthur v. Slauson, 60 Wis. 293. The same rule is sanctioned in other states. Reining v. Buffalo, 102 N. Y. 308, and cases there cited. In that case, Ruger, C. J., cites approvingly one of the above decisions of this court. We must hold that the remedy given to the plaintiffs by the city charter, as subcontractors, was exclusive; and that they have failed to state a cause of action under the charter.

2. The argument to the effect that each of such enactments in relation to the city of Milwaukee was a “ private or local bill,” within the meaning of sec. 18, art. IY, Const., and therefore void by reason of a defective title, is clearly untenable. True, those amendments to the city charter were confined in their operation to the limits of the city, but they were of public concern, and liable to affect the rights of any of the people therein, and hence can in no sense be regarded as private or local laws, within the pro-bibition mentioned. This has too often been adjudicated by this court to need enforcement here. Cathcart v. Comstock, 56 Wis. 609; Zitske v. Goldberg, 38 Wis. 233, and cases there cited.

By the Court.— The order of the county court is affirmed.