42 Wis. 377 | Wis. | 1877
We have no doubt that the building commissioners, under the 6th section of chapter 39, Laws of 1870, had authority to contract for and procure plans, drawings and specifications for the entire hospital building for the insane which it was proposed to erect. It is true the act plainly intends that the commissioners should undertake to erect only such a portion of the building as might be completed and made ready for occupancy by the appropriation therein made. A further enlargement of the building was contemplated by the legislature, so as to make the entire hospital, when completed, of a capacity not less than the then existing hospital for the insane at Madison. This is the obvious meaning and intent of the act, as gathered from the language used. So that, whatever plans, drawings and specifications should be necessary and proper for the entire hospital, when completed, the commissioners were authorized to contract for and procure. There was, however this limitation on the discretion of the commissioners in the selection of a plan, namely, that the general features of the new institution should be similar to the insane hospital at Madison, with such modifications as experience had shown to be desirable; and the plan determined on should be such as to admit of an enlargement of the building erected under the act, to the proposed capacity, without destroying its symmetry. The complaint states that the commissioners entered into a contract with the plaintiff, in and by which he undertook to furnish full and complete plans, specifications and working drawings for the entire building, which agreement was within the scope of the authority of the commissioners, and became a binding obligation upon the state. As it was contemplated that the entire hospital building should not be erected at the same time, but the wings and center building at different times, the learned attorney general argues
By the 8th section, the commissioners were authorized to appoint a competent building superintendent, whose duty it was to superintend the work as it progressed, and whose compensation was to be determined by the board. Power was given the commissioners to discharge such superintendent at their discretion. This power was vested in the board for the public benefit, in order to secure the services of a faithful, competent superintendent of the work; and we do not think the commissioners could by contract waive that power, or debar themselves from the right to exercise that discretion. It was said by the learned counsel for the plaintiff, that the com-, missioners might bind themselves not to discharge a superintendent once appointed, and thus exhaust their discretion. But we think otherwise. The discretionary power was intended to be a continuing one, for the protection of the public, and could not be relinquished by the commissioners. If. they attempted to relinquish it in the contract made with the
It appears from the complaint that the commissioners contracted with the plaintiff for the plans and specifications for the entire hospital, and employed him to superintend the whole work, agreeing to pay for both services “five per cent, on the cost of construction.” The plaintiff’s counsel admits that there was an excess of authority on the part of the commissioners in making this contract; and there plainly was, in more than one particular. Excluding from view the question of ratification, which will presently be considered,.the inquiry arises as to the plaintiff’s rights under the circumstances. It appears that he superintended the work until the 26th day of March, 1874, when he was discharged from that service. The question is, What is he entitled to recover? So far as the contract was executed, there is no difficulty. The plaintiff can recover the contract price for his plans and specifications and services as superintendent up to the time of his discharge. He may further recover the value of his plans and specifications for that portion of the work which he did not superintend, on a quantum, meruit. His discharge was within the lawful authority of the trustees under chapter 176, Laws of 1872. The contract affords no means or data, it is true, by which the relative value of the plans, etc., as distinguished from the value of superintending the work, can be ascertained. If, instead of fixing an entire sum for both services, the contract had stated what was to be paid for all the plans and specifications furnished, and what to be paid as compensation for services as superintendent, the amount of recovery could readily be ascertained. But as it is, the value of the plans, etc., for that part of the work which the plaintiff did not
While admitting that the commissioners exceeded their authority in making the contract, the plaintiff’s counsel claimed that there was a ratification thereof by the legislature. The complaint, we think, fails to show affirmatively a ratification; nor can a ratification be inferred from the facts stated. There can be no doubt that the legislature might ratify and confirm the unauthorized acts of the commissioners, and validate the contract. If, with full knowledge of all the facts and of the terms of the contract, the legislature recognized and acted upon it, making appropriations for completing the hospital building upon its assumed validity, a ratification would surely be presumed. The question is, Has the legislature done this? The matter relied on in the complaint to show such ratification is the enactment of chapter 39, Laws of 1871, chapter 88, Laws of -1872, and chapter 58, Laws of 1873. It is sufficient to say, in respect to the latter act, that it merely appropriates a sum of money “for the use of the Northern Hospital for the Insane.” The two former acts in effect provide for the erection and completion of the center building and all the wings on the north side thereof, making appropriations for these objects. In each act the commissioners were authorized to enter into contracts for the construction of these buildings; but there is nothing to warrant the inference that the legislature was then in possession of the contract made with the plaintiff, knew its terms, or in any manner ratified or adopted it. There is a reference to a “ plan adopted by the board and approved by the governor,” but that is all. Presumably, it is said, the legislature had full information in regard to this contract in the reports made to it by the governor. But this inference is not legitimate nor necessary from the facts alleged. It is a material fact bearing on the question of ratification,
It is alleged that the commissioners, in the year 1871, made their annual report to the governor, and in the year 1872 made their second annual report, and in the winter of 1873 specially reported to the legislature, and in all said reports stated the fact of the making of the contract with the plaintiff, and the compensation agreed to be paid him. We find in the Assembly Journal for 1873, that the commissioners made a report to that body in answer to a resolution calling for information, and that a copy of the contract accompanied the report. But we do not find that any action was taken by that body on the report, nor was any report made to the senate. We suppose we cannot take judicial notice of the matters stated in the Assembly Journal; and any ratification of the contract on the part of the legislature would properly appear in some resolution or law passed. In no other way could a ratification be made.
It follows from these views that the demurrer must be overruled.
By the Oov/rt. — Demurrer overruled.
