Houghton v. Burnham

Paine, J. We have carefully examined the evidence in this case, and think it sustains the finding of facts by the court below. This being so, an entirely different question is presented from that presented in Kneeland v. Milwaukee, 18 Wis., 411, or that in Wells v. Burnham, 20 Wis., 112, both of which cases involved the validity of the same sewer tax. In both of those cases it was a conceded fact, that no plan of the sewer was ever made, or filed in the comptroller’s office, as the law authorizing the work required. But in this case it was proved that a plan was made and left in the comptroller’s office, and that it was fully adequate to enable bidders to make a reasonably accurate estimate of the work, being as full and definite as such plans are usually made by competent architects and engineers. This must he held sufficient. The law, in requiring a plan, could only have intended a plan as full, and'perfect as it is usual for persons of competent skill to make of such works. It is true, the cpst could not be estimated with perfect accuracy without knowing the number of the man-holes, and how they were to he constructed. But it was shown [307] that a man-hole is a well understood thing, usually constructed in a round form, though sometimes in a square, but that there was no material difference in the expense; and that any person at all familiar with such works could estimate their cost with reasonable certainty. Their number was left somewhat uncertain, though they could not exceed one to every four hundred feet. This, of course, would prevent absolute precision in an estimate; but the witnesses testify that the matter was so trifling in importance that it would have made no difference in the bids. So also there was an uncertainty in the kind of cement to be used. Such reservations, creating uncertainty as to the amount of work, or quality of materials, in contracts for public works which are required by law to be let to the lowest bidder, should be closely watched. They are of a dangerous tendency, and ought not to be encouraged. The danger is, that the bid may be put in upon an estimate for the highest amount of work, or for the best material, and then a less amount of work be performed, or an inferior quality of material used. But here it appears that the most expensive cement, was actually used. So that, although there might have been a wrong done to the property owners by this uncertainty in the kind of cement, if the prices were materially different, yet in fact there was none. "We are of the opinion, therefore, that the slight uncertainty in regard to the number and mode of construction of the man-holes, in view of the testimony that it would have no effect upon the bids, ought not to defeat the validity of the entire proceeding; that notwithstanding that, and the original uncertainty in regard to the cement, there was a substantial compliance with the requirements of the law, and no injustice done to the property owners. By the Court. — The judgment of the circuit court is affirmed.