State ex rel. C. Reiss Coal Co. v. Born

Cassoday, 0. J. It is contended that the common council had no jurisdiction to allow the claim. This is put on the ground that the board of public works is by the charter (ch. 124, Laws of 1887) required to take charge and special superintendence of all work for the deepening, widening, or •dredging of the rivers within the city, and shall have power to ■make contracts therefor as therein prescribed, and shall per-form all the duties therein required, “ and such other duties •as the common council may from time to time require ” (sec. [546] 5, tit. Y); and that all work, except as otherwise provided therein, chargeable to any of the several ward or city funds, shall be let by contract to the lowest bidder, in the manner therein provided; and that all supplies or materials, exceeding $100, shall, when practicable be purchased by the board by contract so let; and that “all accounts for such work or for the furnishing of such materials shall, before being allowed by the common council, be audited by the comptroller, and all such accounts for work done or materials furnished under the supervision of the board of public works shall be-certified by them before being audited ” (sec. 15, tit. Y). But the charter further provides, in effect, that the city of She-boygan shall have the general powers possessed by municipal corporations at common law, and, in addition thereto, shall possess the powers hereinafter specifically granted, and shall, be capable of contracting and being contracted with, of suing- and being sued, of pleading and being impleaded, in all the-courts of law and equity (sec. 1, tit. I); that such government be vested in the mayor and common council; that the common council shall have the management and control of' the finances and of all the property of the city, except as. otherwise provided (secs. 1, 2, tit. IY); that the docking and dredging o.f the Sheboygan river in said city opposite any street or public grounds abutting thereon, and the dredging-of the middle part or ground of said river further than thirty feet from either dock line, shall be done by the city; that the board of public works, subject to 'the approval of the common council, shall have power, and are hereby authorized, and it shall be their duty when ordered thereto by the common council, without petition thereto in that behalf, to cause the said river or any portion thereof to be docked and dredged (sec. 4, tit. YII); that all accounts and regulations appropriating money or creating any charge against any of the funds of said city shall be referred to appropriate committees, and shall only be passed or acted upon by the com [547] mon council at a subsequent meeting (sec. 4, tit. IV); that every appropriation which shall have been duly passed by the common council, before it shall take effect and within ten days after its passage, shall be duly certified by the city clerk and presented to the mayor for his approval; that, if the mayor approve of the same, he shall sign it; if not, he shall return it within ten days, with his objections thereto stated in writing, to the city clerk, who shall submit such objections to the common council at their next regular meeting thereafter, and such objections shall be entered upon their journal, and the common council shall proceed to reconsider the matter; and if, after such reconsideration, two thirds of all the members elect shall vote to pass the said appropriation, it shall take effect and be in force as a law of the corporation;' otherwise it shall be null and void (sec. 6, tit. IV). There appears to have been a necessity for removing the bank or bar (which apparently had suddenly accumulated in the river) immediately, for the convenience of commerce and in order to facilitate the landing of boats and vessels daily expected to arrive at the docks. The work was done by the relator at the request and under the direction and supervision of the standing and permanent committee of the common council known as the “ Committee on Harbor and Bridges.” The proceedings in presenting and allowing the account for the work, by the common council, seem to have been regular, and in the manner prescribed by the charter. The provisions of the charter referred to gave the common council ample power to ratify such action of its committee, and to appropriate money to pay for the same. The mayor fully exhausted his discretionary functions in relation to the matter when he vetoed the appropriation. But when it was passed by the common council over his veto, as prescribed by one of the provisions of the charter referred to, then, as therein provided, the appropriation took effect and became “in force as a law of.the corporation.” [548] It thereupon became the duty of the mayor to obey that law, and the performance of that duty was purely ministerial. State ex rel. Van Vliet v. Wilson, 17 Wis. 687; Joint Free High School Dist. v. Green Grove, 77 Wis. 537; Waupaca Co. v. Matteson, 79 Wis. 67. The objection to making the appropriation effectual is made by the mayor, and not by the city. The trial court very properly overruled the demurrer and motion to quash, with costs. By the Oowrt.— The order of the circuit court is affirmed.