Koch v. City of Milwaukee

89 Wis. 220 | Wis. | 1895

PiNNey, J.

The point decisive of this appeal is whether, ■after the five sets of plans and specifications mentioned had !been procured for the library-museum budding by the members of the library board of trustees and the museum board ■of trustees, acting jointly, though without any lawful authority, and had been reported to the common council, that hody could adopt their acts in procuring the same, and’pro-wide for the payment of the costs and expenses thereof, and <direct the mailing of a contract by the board of public works for the erection and construction of such building ae-cording to the plans of the defendants Ferry & Glas, and' give them the superintendency of its erection.

The public library of the city of Milwaukee is a branch of its educational department, to be maintained by the city by and with the “ library fund,” raised by general taxation and received and paid out by the city treasurer in the manner specified by its charter. The library is under the control and management of the board of trustees of the public-library, the powers and duties of which are defined by law. It is evidently a subordinate bureau or department of the city government,.and while it has power to erect, purchase,, hire, or lease buildings, rooms, etc., no lot or building could be purchased, leased, or erected for the purpose mentioned. “ without an ordinance or resolution of the common council of the said city,” and deeds of conveyance and leases therefor are to run to the city, and orders for the payment out of the library fund are required to be countersigned by the-city comptroller. Ch. I, Laws of 1878. The public museum of the city has substantially the same relation to the city government as the public library, and is supported in the-same manner, and the powers and duties of its board of' trustees are substantially like those of the board of trustees-of the public library. Laws of 1882, ch. 328.

By ch. 93, Laws of 1891, an issue of bonds by the city of' Milwaukee was authorized for the erection of the public-library and museum building, and it was provided by sec. 10 of the act that: “ The board of public works shall have power and authority, by and under the direction of the common council, to enter into contract or contracts for doing-all the work of erecting and constructing the library and museum building,” and to appropriate out of the funds realized from the sale of the bonds “ such sum or sums of money as may become necessary and required for defraying the cost for the erection of said building,” not exceeding, etc.; and it appears that by ch. 311, Laws of 1893, further power-was conferred on the common council to issue bonds “ for the erection and construction of library and museum buddings, and the purchase of sites for the same.” The argument in support of the injunction was that the power to contract for the erection and construction of the library and museum budding was vested solely in the board of public works, and the common conned had no discretion or control in reference thereto, and could only set the board of public works in motion, leaving the substantive conditions and provisions of the contract entirely to the discretion and judgment of the board of public works, and that as the common councd had no other authority, it was not competent for it to ratify the acts of the members of the boards of trustees of the library and of the museum in securing the plans and specifications in question, and to appropriate from the proper-funds the cost and expenses of obtaining them.

The statutes relating to the public library and public museum show clearly that full control is vested in the common council to determine the character, kind of buildings,, and the time of their erection for these city institutions. They were to be paid for by the exercise of the power of taxation vested in the common council, and could not be erected without a previous ordinance or resolution of the common council. Laws of 1878, ch. 7, secs. 10, 11; Laws of 1882, ch. 328, secs. 10, 11. The general powers of the city government are vested in the common councd, with special delegations of power to particidar subordinate officers and subordinate agencies or bodies, for the better and more convenient administration of the city affairs. Laws of 1874, ch. 184, subch. 2, sec. 1, and subch. 4, sec. 1. There was established by the charter for the city “ an executwe department, to be known as the board of public works,” with certain limited powers. Id., subch. 5, sec. 1. It could not initiate the erection or construction of public buildings or improvements. It could act only after tliis work or improvement bad been ordered by tbe council. Id., subch. 5, seo. 9. And seo. 10, cb. 93, Laws of 1891, as we have seen, confers tbe power and authority on the board of public works to contract for doing all tbe work of erecting and constructing this particular building, under and when directed by tbe common council.

It was plainly intended that tbe council, should have authority to procure plans and specifications for tbe building, ■to enable it to determine tbe kind and character of building tbe present and prospective necessities of tbe city required, in order that it might give wise and intelligent direction on tbe subject to tbe board of public works, and there can, we think, be no doubt that it bad original authority, for this purpose, to procure or direct tbe procurement of tbe proper plans and specifications for tbe building. They were in fact procured for tbe use of tbe city in tbe erection of tbe building, and it seems to follow-as a necessary consequence that, having been delivered to tbe common council, it bad a light to ratify tbe acts by which they were obtained and to appropriate the money necessary to pay the costs and expenses of their procurement. A court of equity ought not, we think, to interfere by injunction to prevent a wise and discreet exercise of this power on tbe part of tbe council. A municipal corporation may ratify tbe unauthorized acts and contracts of its agents which are within tbe scope of its corporate powers, and such ratification is equivalent to previous authority.

Tbe same principle is applicable in this respect to such corporations as to individuals, but subsequent ratification cannot make valid an act beyond tbe scope of corporate authority. 1 Dillon, Mun. Corp. sec. 463, and cases cited in note 1; 15 Am. & Eng. Ency. of Law, 1102, and cases cited. Tbe case of Mills v. Gleason, 11 Wis. 470, is a sufficient and decisive authority on this subject. An issue of corporate bonds in tbe name of tbe city of Madison, by its so called officers, elected before tbe city charter had been, published and at a time when the city had no legal existence, was held validated by ratification of the same by the city after the charter had been published, the funds procured by the sale of the bonds having been used in erecting city buildings, and the common council having twice levied taxes to pay interest thereon after the city became a corporation de jure. In Dullanty v. Vaughn, 77 Wis. 38, and Trester v. Sheboygan, 87 Wis. 496, there was an utter absence of original authority on the part of the city in the one case, and of the town in the other, to make the contract claimed to have been ratified.

We do not overlook the contention, sustained by many well considered cases, that where the charter or a statute has committed a class of acts to particular officers or agents other than the governing body, the specified functionaries must act, and generally no act of recognition or ratification by such body can supply a want of such action. But it must be borne in mind that it had not been delegated to the board of public works to determine whether the building in question should be erected or not, nor the kind and character of the building, nor to procure plans and specifications for it, without previous authority of the council. The action of the board of public works in entering into a contract for the construction of the building is subject to and'dependent upon the direction and original power of the council as the governing body of the city, and the board of public works in this respect is but a convenient subordinate executive agency to execute the powers of the common council.

We hold, therefore, that the common council had original power to erect and construct the library-museum building, and that it was .fairly and indeed a necessary incident of such power, to procure plans and specifications to enable it to prudently and properly exercise it, and that it has a right to adopt and ratify the acts of those who procured the plans and specifications for its use, and to appropriate money from tbe proper fund to pay tbe fair costs and expenses of procuring them; and, inasmuch as there is no allegation of meditated bad faith or fraud on the part of the common council, the injunction asked for was properly refused.

By the Oov/rt.— The order of the circuit court appealed from is affirmed.