Summary
In Kranjec v. West Allis (1954), 267 Wis. 430, 66 N.W.2d 178, this court had before it a lease of city park land made by the city of West Allis and its park commissioners.
Summary of this case from S. D. Realty Co. v. Sewerage CommOpinion
September 8, 1954 —
October 5, 1954.
APPEAL from an order of the circuit court for Milwaukee county: OTTO H. BREIDENBACH, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Robert J. Beaudry, attorney, and William B. Rubin of counsel, both of Milwaukee.
For the respondent city of West Allis there was a brief by George A. Schmus, city attorney, and Charles G. Panosian, assistant city attorney, and oral argument by Mr. Schmus.
For the respondent Kearney Trecker Corporation there was a brief by Bendinger, Hayes Kluwin, attorneys, and Maxwell H. Herriott and Donald J. Tikalsky of counsel, all of Milwaukee, and oral argument by Mr. Herriott.
This is an action for an injunction and to have a lease declared null and void. The complaint alleges that the plaintiff is a citizen, resident, taxpayer, and an automobile owner and driver living in the city of West Allis, and that he brings this action on his own behalf and on behalf of all other owners and drivers of automobiles, taxpayers, and residents of said city similarly situated. After identifying the defendants, the complaint alleges the following:
"III.
"That the city of West Allis has for many years zoned off within its corporate limits a park known as West Allis Central Park, which abuts South 69th and West Orchard streets; that the park is a public playground, heretofore and still is used by the plaintiff and by others with their families and children for their amusement and recreation and for the parking of automobiles in its vicinity.
"IV.
"That on the 16th day of September, 1953, defendants, city of West Allis, the board of park commissioners, and Kearney Trecker Corp., entered into a lease, a copy of which is hereto attached, marked Exhibit `A,' and made a part and portion of this complaint as though herein reiterated in full; that by said lease the city of West Allis and the board of park commissioners leased to defendant, Kearney Trecker Corp., a part of said West Allis Central Park, to wit, a space 230 feet by 230 feet, for exclusive parking purposes between the hours of 6 o'clock a. m. and 3:30 o'clock p. m. every day during the term of the lease, and the defendants, Harold Voss and John Hrdlicka, under the direction and with the consent of Kearney Trecker Corp., and by and with the consent of the other defendants, are engaged in plowing up said space hereinabove mentioned as a playground in readiness for an exclusive parking lot by Kearney Trecker Corp. between the hours aforesaid.
"V.
"That said lease is void and is of no effect; that it was entered into privately and secretly between the defendant, city of West Allis, the defendant, board of park commissioners, and defendant, Kearney Trecker Corp., without proper resolutions or adoption, without offering the same to the public, for the exclusive use of said defendant, Kearney Trecker Corp., to the exclusion of the plaintiff and all others similarly situated, of parking their cars on the aforesaid premises; that said lease was adopted and entered into without due regard to the equal and uniform rights and privileges of all other taxpayers and citizens of the city of West Allis or visitors to said park, without opportunity for others to obtain such lease, without opportunity for the use of said park and lot during the hours aforesaid; without offering to the public; without competition, without bids to the highest bidder, without resolution, but a private, noncompetitive arrangement to the deprivation of the rights of the plaintiff and of all others similarly situated; that plaintiff informed the defendants that the lease was wholly questioned as to its validity, and, therefore, not to proceed in incurring any expenses for the unlawful preparation and damage to the park until it shall have been properly and legally adjudicated, but the defendants have disregarded said notice and warning, and are proceeding to carry out the terms of said lease."
A copy of the lease was attached to the complaint and made a part thereof. The lease is for a period of five years with an option to renew for an additional five years. The lessee therein agreed to pay an annual rental of $3,000 to improve the premises by constructing a retaining wall on three sides thereof and by surfacing, draining, fencing, lighting, and landscaping the same according to plans provided by the city, and also by erecting playground equipment costing $2,500. At the end of the term of the lease all improvements and equipment will become the property of the city.
The city of West Allis and the board of park commissioners appeared by the city attorney and filed a demurrer to the complaint on two grounds, as follows:
"1. That the plaintiff has not legal capacity to sue; as it appears therefrom that the plaintiff and the taxpayers he represents have sustained no pecuniary loss, and that the plaintiff and the taxpayers, as a class, will suffer no injury separate and distinct from an injury that would be sustained by the public at large.
"2. That the same does not state facts sufficient to constitute a cause of action."
The Kearney Trecker Corporation also demurred to the complaint on two grounds, as follows:
"1. That the plaintiff has not legal capacity to sue because he did not follow the proper legal procedure, and will not suffer the injury necessary to maintain said action.
"2. That the complaint does not state facts sufficient to constitute a cause of action."
An order was entered on December 31, 1953, sustaining the demurrers to the complaint and the plaintiff appealed.
The main question presented is this: Does the complaint state facts sufficient to constitute a cause of action?
The alleged infirmities of the lease are set forth in paragraph V of the complaint, which is set out above. Some of the alleged infirmities are conclusions of law and not admitted by the demurrers. In no instance is there cited any statute that has been violated; fraud or bad faith on the part of the city officials is not alleged. The defendants, on the other hand, call attention to sec. 3a, art. XI of the Wisconsin constitution and to secs. 62.23(17), 62.22(1), and 66.079, Stats., as authority for the city to enter into the lease in question. Our attention is not directed to any statute that requires the city to lease property by the competitive-bid method, such as the statute prescribes for contracts for public works. Municipalities have the same right, unless restricted by statute, to convey property as they have to acquire property, and such matters are within the reasonable discretion of the proper municipal authorities.
The complaint does allege that the lease was entered into without proper resolution or adoption. The lease, which is a part of the complaint, recites that the same was signed by the duly authorized officers of the city. An allegation that the lease was entered into without proper resolution or adoption is merely a statement of an opinion. Such an allegation is insufficient in the absence of further allegations setting out the action actually taken by the city council prior to the signing of the lease, or that no resolution was adopted by the council authorizing the same. The lease recites that it is between the city of West Allis and the Kearney Trecker Corporation. The board of park commissioners were not parties thereto, except that an additional page was added containing an execution by the board by its president and secretary, together with an acknowledgment by them. That adds nothing to the lease nor does it subtract anything from it. The city council was the proper body to authorize the execution of the lease, and the mayor and city clerk, as a result of such authorization, would be the proper parties to sign the same.
We must conclude, therefore, that the complaint does not state facts sufficient to constitute a cause of action and that the demurrers on that ground were properly sustained. "A demurrer is an entity in pleading, and its grounds or causes are separate and not joint, and it should be sustained if any of its grounds or causes presented is good." Chas. H. Stehling Co. v. Milcor Steel Co. 242 Wis. 629, 9 N.W.2d 78 (headnote 1).
Under the above rule the complaint as a whole was demurrable.
At the time of the hearing, a motion was made by the plaintiff to strike from the record an affidavit of the city clerk which was used in connection with an application for a temporary injunction and which was printed as a supplemental appendix in the brief of the city of West Allis. That affidavit was no part of the record so far as the ruling on the demurrers was concerned and was not considered by this court. The motion to strike the same is granted.
By the Court. — Order affirmed.