
    Kane vs. The City of Fond du Lac.
    ARBITRATION: Cities: Evidence. (1) Poioer of city to submit claim to arbitration. (2-6) -Various objections to arbitration proceedings. Waiver of objections. (1,8) Action on aivard: Evidence as to original liability inadmissible.
    
    1. A city, unless restricted in that respect by its charter, may submit a disputed claim against it to arbitration; and the common council of the defendant city had the right, in such a case, to entrust the selection of the arbitrators to the dty attorney.
    2. The city attorney having appeared before the arbitrators, examined witnesses and argued and submitted the cause, the objection that he had not been served with notice of the time and place of meeting of the arbitrators, was waived.
    
    3. In a common-law arbitration, it is not required that witnesses shall be sworn; where it is not so provided in the submission.
    4. Where a claim against a city is submitted to arbitration, the award cannot be impeached on the ground that one of the arbitrators, being an aider-man of the city, had been active in the council in endeavoring to procure payment or arbitration of the claim; there being nothing in such conduct rendering him incompetent to be an arbitrator, and the city having waived any objection on that ground by accepting him as such.
    5. There being no proof that the award as drawn does not contain just what the arbitrators agreed on, the fact that it was drawn by the claimant’s attorney is no ground of objection. '
    6. Such an award cannot be impeached by the city on the ground that the arbitrators examined two witnesses in the absence of the city attorney, and away from the place of hearing, where it appears that the city attorney consented to such examination.
    7. In an action on the award, evidence bearing merely on the liability of .the city upon the original claim, is inadmissible.
    8. Where, therefore, the claim against the city was for personal injuries alleged to have been received by plaintiff by reason of a certain alleged obstruction to a public street, to wit: a certain patent shutter which fell upon him in front of the store of one P., in said street, it was not error, in an action upon an award of damages to the claimant, by arbitrators, to reject evidence, (1) that the shutter was not in a public street, or (2) that plaintiff, in an action previously commenced against the city and P., had stipulated, for a consideration, to discontinue as to,P.
    APPEAL from tbe Circuit Court for Fond, ¿tu Lao County.
    Tbe action is upon an award. Tbe plaintiff brought an action against tbe defendant city, and one Perkins, to recover damages for personal inj uries alleged to bave been received by bim by reason of a certain obstruction to a public street in said city, to wit, a “ Perkins Patent Shutter,” which fell upon him in front of tbe store of tbe said Perkins. It seems that be claimed that both defendants in that action were liable for such injuries. Pending that action, tbe common council of tbe defendant city passed-tbe following resolution: “Resolved that tbe city attorney be, and be hereby is, authorized to submit tbe claims and suit of Patrick Kane against tbe city to three arbitrators for bearing and decision.” Pursuant to such resolution, tbe city attorney entered into a written submission, signed by himself officially and by tbe attorney of tbe plaintiff, reciting tbe controversy and submitting to three persons therein named, “ tbe question whether any damages shall be awarded said Kano from said city for said injuries; and if so, wbat amount of damages shall be so awarded and paid.”
    A hearing of the matter was had before the arbitrators, who awarded to the plaintiff $650, to be paid bj the city. The proceedings under the submission, and the rulings of the court in this action (which is upon such award), are stated in the opinion so far as is necessary to au understanding of the points decided. No question is made on the pleadings. The defendant appeals from a judgment against it for the amount of the award.
    
      DeW. C. Priest, for appellant:
    1. No municipal corporation exists by the common law in this country. Dillon on Mun. Corp., 317. 2. The legislature cannot grant to corporations an unlimited power to contract debts or raise money for extra-municipal affairs. Const, of Wis., art. Till, sec. 9; id., art. X, sec. 3; Foster v. Ke-nosha., 12 Wis., 616. 3. The amount of the award must be raised by tax, if ever paid, and it could not be enforced by the defendant by legislatiye authority. Dillon on Mun. Corp., § 345; Mayor of Baltimore v. Korn, 26 Md., 194; Mayor of Baltimore v. Porter, 18 id., 284. And if the injury was caused by a defect not within the street, or by a cause beyond the power of the defendant, the defendant is not liable, and cannot create a liability. Dillon, 13, note 1, 55, note 1, 381, 1713, 749, 758, 766-768; Mayor of Albany v. Cunliff, 2 Corns., 165; Pekin v. Kewell, 26 Ill., 320; 21 id., 205; 12 Md., 165; 12 Mass., 272; 104 id., 75; 2Denio, 110; 23Pick., 71; 23 How. (U. S.), 435; 3 Wall., 32; 16 Cal., 282; 18 id., 643; 29 id., 180; 18 Ohio, 32; 5 Ind., 383; 7 id., 86; 8 Met., 388; 1 Allen, 30; 2 id., 552; 7 Gray, 100; 13 id., 59, 344, 510; 7 Cush., 498; 3 id., 117; 4 id., 275. 4. The corporation could not delegate its power to arbitrate. Dillon, 567, notes 1, 2; id., 60, notes 1, 2, 3. 5. Notice of the time and place of hearing by the arbitrators should have been served on the party. 6 Cow., 103; 4 Allen, 20; 4 Dallas, 232; 1 id., 81; 8 East, 344; 3 Barb., 275; 29 id., 465; Morse on Arbitration, 118, 119, 125. 6. The smallest irregularity is enough to invalidate the award. And the danger of such a mode of trial requires that the strict rule should be followed. Morse, 126; 24 How. Pr., 148; 16 Wis., 644; 34 id., 541; 26 Wend., 534; 8 Bosw., 313; 28 Ga., 140. The award may be impeached for mistake or fraud. 33 Ill., 375; 5 Wall., 419; 39 Ga., 7, 678; 7 Rob., 286. It may be impeached for mistake of law. 31 Cal., 333; 5 Dutch., 160; 7 Wis., 516. The evidence showed that the award was procured to be signed by plaintiff’s attorney. Daniels v. Rvpley, 10 Mich., 237. 7. The court erred in excluding evidence offered.
    For the respondent, the cause was submitted on the brief of Charles E. Shepard,
    
    who argued, 1. That municipal as well as other corporations may, by virtue of their general powers, submit controversies to arbitration. 1 Dill. Mun. Corp., § 398, and notes; Brady v. Mayor of Brooldyn, 1 Barb., 584; Alexandria Canal Co. v. Swarm, 5 How. (U. S.), 83. 2. That the power to arbitrate was properly exercised, and the council had the power to authorize the city attorney to submit the matter and select the arbitrators. Gibbs v. Holcomb, 1 Wis., 23. 1 Dill. Corp. (2d ed.), § 374 ; Morse on Arbitration, 5 ; 2 Parsons on Con., 688; Bucldand, v. Conway, 16 Mass., 396; Brady v. Mayor of Brooldyn, supra. The submission was valid on behalf of both parties. Bacon’s Ab., “Arbitrament” (B); New England Ins. Co. v. í)e Wolf, 8 Pick:, 56; 1 Am. L. 0. (3d ed.), 577, note, 579-89; Combes’ Case, 9 Coke, 76 b.; Am. L. C., note, supra; Church v. Milwaukee, 31 Wis., 512, 518. 3. That this was a common-lam arbitration, and no particular form of submission or proceedings was required. All reasonable presumptions should be made in behalf of such arbitrations. Bacon’s Ab., “Arbitrament” (B), (E), (E); Da/r-Img v. Darling, 16 Wis., 644. The irregularities, if any, were of form, and were waived by the defendant’s attorney. Morse on Arb., 112, 171-175, and cases cited; Hill v. 
      Taylor, supra. There was no necessity for administering oatbs to the witnesses. Wwiship v. Jewett, 1 Barb. Oh., 173, 183; Large v. Passmore, 5 Serg. & B., 51; Street v. Bigly, 6 Yesey Jr., 815; Morse on Arb., 126, 131, 132; Ma/ynard v. Frederick 7 Cush., 247, 250; Brovm v. Bellows, 4 Pick., 179,189. 4. That none of the evidence offered tended to show fraud or partiality in any of the arbitrators, and moreover the defendant had prior notice of the facts relied on by them to show fraud or improper influence, and so waived the objection. Fox v. Uazelton, 10 Pick., 275, 277.' No presumption of fraud is raised by the amount of the award, nor by the fact that it was drawn by the plaintiff’s attorney. Wood v. B. B Oo., 4 Seld., 160, 168-9; In re Underwood, ete., 11 O. B., N. S., 442; Fetherstone v. Cooper, 9 Yesey Jr., 67; Maynmdv. Frederich, supra. 5. That the discontinuance as to Perkins did not affect the cause of action against the defendant. This is not the ordinary case of two joint tort-feasors equally in the wrong. Moreover this question was settled by the award. 6. That common-law arbitrators, unless they are especially restricted, or make a special finding of fact or law, are general judges of law and fact; and their decision is final and conclusive, except on proof of fraud or irregularity, not waived. Boston Water Power Co. v. Cray, 6 Met., 131, 165-170'; Winship v. Jewett, 1 Barb. Oh., 173,184; 2 Parsons on Con., 701-706, and notes; Morse on Arb., 293-299; Fudielmr v. Ins. Co., 62 N. Y., 392, 399-405.
   Lyon, J.

I. That a municipal corporation may, unless restricted by its charter, lawfully submit a disputed claim against it to arbitration, and that the common council of the defendant city had ample power to do so in the present case, we cannot'doubt. These propositions are fully sustained by the authorities cited in behalf of the plaintiff, and by the charter of the city.

Neither do we doubt that it was competent for the common council to entrust tbe city attorney with the selection of tbe arbitrators.- That body bad as full and complete control of tbe litigation as a natural person bas of litigation to wbicb- be is a party; and no one doubts tbat a natural person will be bound by an award made pursuant to an authorized submission entered into by bis attorney. Judge Dillon, in bis treatise on municipal corporations, says: “The authorized body of a municipal corporation may bind it * * by a resolution, or by a vote clothe its officers, agents or committees with power to act for it; and a contract made by persons thus appointed by tbe corporation, though by parol (unless it be one wbicb tbe law requires to be in writing), will bind it.” § 374. Moreover, tbe charter of tbe city of Eond du Lac expressly charges tbe city attorney with tbe duty of conducting tbe law business of tbe city when so ordered by tbe common council, and gives tbe council full power to direct what duties be shall perform. P. & L. Laws of 1868, p. 90, sec. 6, and p. 97, sec. 20. If tbe council may impose a given duty upon him, be must necessarily be clothed with power to perform such duty.

II. It is claimed for tbe city that tbe award is void for the following alleged reasons: 1. No notice of the meeting of tbe arbitrators was given to tbe city attorney; 2. The witnesses were not sworn; 3. Two of the arbitrators bad beard the statement of tbe plaintiff, and one of them bad acted in bis behalf in urging payment of bis claim; 4. Tbe award was drawn by plaintiff’s attorney without being directed by tbe arbitrators to do so; and, 5. Tbe arbitrators examined two witnesses in tbe absence of tbe city attorney.

These reasons will be briefly considered in their order. 1. Tbe city attorney aj>peared for tbe city, and, on tbe bearing before tbe arbitrators, examined witnesses, or one witness, and argued and submitted tbe case of tbe city to tbe arbitrators. This dispensed with tbe necessity of notice of tbe time and place of bearing. 2. This is not a submission under ch. 131, R. S., but under tbe common law. It is not provided in tbe submission that tbe witnesses be sworn, and we are aware of no law wbicb requires it. 3. Tbe testimony fails to show any improper communication by tbe plaintiff to either of tbe arbitrators, either before or after tbe submission. The court rejected testimony offered for tbe purpose of showing that one of tbe arbitrators, who was an alderman of tbe city, bad been active in tbe council in endeavoring to procure payment of plaintiff’s claim, or its submission to arbitration. "We think tbe testimony was properly rejected. There was nothing in such conduct wbicb interfered with the competency of such alderman to act as an arbitrator. Besides, tbe city is chargeable with notice of bis action in tbe council, and, by accepting him as an arbitrator, waived any right to object to him for that reason. 4. There is no proof in tbe case tending to show that tbe award as drawn does not contain just what tbe arbitrators agreed upon; and, that being tbe case, it is of but little importance who drew it. After tbe award was agreed upon, we think there was no impropriety in employing tbe attorney of the'prevailing party to draw it up. This is analogous to an every-day practice in tbe courts; the court announces its judgment, and directs tbe attorney of tbe prevailing party to reduce it to wilting for entry of record. It does not appear bow Mr. Shepard, tbe attorney of tbe plaintiff, came to draw tbe award, neither is it material, nothing having been shown to raise tbe slightest doubt or suspicion that be did not draw it strictly as tbe arbitrators bad decided. 5. It is true that tbe arbitrators examined two witnesses in tbe absence of tbe city attorney, and away from tbe place of bearing. But tbe testimony is uncontradicted, that tbe city attorney consented thereto. Tbe court submitted to tbe jury tbe question whether such consent was given as to one of these witnesses, but that was unnecessary.

III. On tbe trial, testimony was offered in behalf of the defendant to show that tbe shutter, by the falling of which the plaintiff was injured, was not in a public street, and bence that tbe city was not liable for sucb injury. Tbe testimony was rejected, and properly, for tbe reason that tbe question of tbe liability of tbe city was submitted to tbe arbitrators, and their decision of it is final. This rule is elementary.

2. It seems that after tbe action against Perkins and the city was commenced, and before tbe submission was made, tbe plaintiff stipulated in that action as follows: For and in consideration of $50 worth of accounts belonging to defendant Perkins, which I have selected from a batch of accounts in tbe bands of Knowles & Babcock, I have this day settled and discontinued the said action against tbe said E. Perkins by and with, tbe consent of my attorney, C. E. Shepard, and direct that this settlement and discontinuance be entered accordingly. Each party to pay bis own costs. This is not to affect tbe action against tbe city.”

Tbe stipulation was offered in evidence in this action, on behalf of tbe city, to show that tbe plaintiff bad received satisfaction of Perkins for bis damages, and bence bad no claim against tbe city therefor; but tbe same was rejected by tbe court. If tbe plaintiff’s claim against tbe city could be affected in any event by tbe stipulation (a point not here decided), it was a matter for tbe consideration of tbe arbitrators, and the city should have made that defense before them. It not appearing that there was any fraudulent concealment of tbe stipulation, tbe effort to make tbe defense on tbe trial of this action came too late.

Tbe foregoing observations, it is believed, dispose of all tbe material questions presented by tbe assignment of errors. Failing to find any material error disclosed in tbe record, we must affirm tbe judgment of tbe circuit court.

By the Ooivrt. — Judgment affirmed.  