
    Koch and another, Appellants, vs. The City of Milwaukee and others, Respondents.
    
      December 17, 1894
    
    January 8, 1895.
    
    
      Municipal corporations: Milwaukee: Powers of common council and board of public works: Erection of library and museum building: Procuring plans, etc.: Ratification.
    
    By the charter of Milwaukee the general powers of the city government are vested in the common council; and by the statutes relating to the public library (Laws of 1878, ch. 7) and the public museum (Laws of 1882, ch. 328) no building could be erected for either of those institutions without an ordinance or resolution of the common council. By ch. 93, Laws of 1891, the city was authorized to issue bonds for the erection of a public library and museum building, and it was provided 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 building, and to appropriate out of the funds realized from the sale of the bonds “ such sum or sums as may become necessary and required for defraying the cost of the erection of said building,” etc.; and by ch. 311, Laws of 1893, further power was conferred on the common council to issue bonds for the erection of such building, etc. Under the charter the board of public works was “ an executive department,” having no power to initiate the ereetion or construction of public buildings. Held, that the common council had original power to erect and construct said library and museum building and, as incident thereto, to procure plans and specifications therefor. It had therefore the right to adopt and ratify the acts of the trustees of the library and museum in procuring such plans and specifications, and to appropriate money from the proper fund to pay the expenses thereof. Dullaniy v. Vaughn, 77 Wis. 38, and Trester v. Sheboygan, 87 Wis. 496, distinguished.
    
      Appeal from an order of tbe circuit court for Milwaukee county: D. H. JosusoN, Circuit Judge.
    
      Affirmed.
    
    Tbe complaint charges that divers persons therein named as defendants, constituting tbe library board and tbe museum board of tbe city of Milwaukee, acting as a joint body and not as separate boards, advertised for plans and specifications for a building to be constructed for tbe use of tbe public library and tbe public museum of tbe city of MiVwcm-kee¡ without any resolution having been passed by tbe common council providing for tbe erection of snob building, and it was insisted that such joint action of tbe boards was not in law tbe action of either, but was merely tbe action of tbe individual members of tbe two boards and bad no binding force or efficacy whatever; that in response to tbe advertisements some seventy or eighty distinct sets of plans and specifications were submitted, and pursuant to tbe terms of advertisement five of these sets of plan's were selected, with tbe aid of an expert architect employed for that purpose, as tbe five best sets, and among tbe sets thus selected were those of tbe plaintiffs and those of tbe defendants Ferry dh Olas; that tbe members of said boards, still acting jointly, selected from these five sets tbe plans and specifications of Ferry dk Olas as the plans and specifications according to which tbe building was to be constructed, and undertook to appoint them as architects and superintendents of it; and it is charged upon information and belief that tbe selection of tbe Ferry ds Olas plans and specifications was collusive and corrupt.
    Tbe plaintiffs sued in their oapacity as citizens, electors, and tax-payers of tbe city, as well as on behalf of other electors and tax-payers thereof. It is alleged in tbe complaint that tbe persons submitting plans and specifications known as first, second, third, fourth, and fifth best were to have each $500 for tbe same, and that the said Ferry do Olas were, in addition to $500, to have percentages on tbe cost of construction of the building, as superintendents, at the rates therein stated; that plaintiffs submitted plans and specifications included within the five best, but they were not adopted; that the amount of money promised to be paid by the said joint board to the said expert for examining said plans and for the said five best plans, which included those adopted, and the percentage for superintending the braiding, would amount to upwards of $12,000, to be summarily disbursed out of the fund in the hands of the city treasurer belonging either to the public library or public museum fund, and to be disbursed on orders of the president and secretary of the board of trustees, respectively, countersigned by the city comptroller, out of funds then in the hands of the city treasurer.
    Upon this complaint an injunction was issued, restraining the members of the boards of trustees of the public library and public museum from taking any further steps or doing' any act towards carrying into execution their purpose in selecting plans and specifications for a public library and museum building, and from adopting any of the plans and specifications submitted to them, cither as a joint board or as individual members of either of the boards, and restraining the city of MiUoauJcee, its treasurer, comptroller, common council, and other officers from paying any obligations incurred by said joint board on account of plans and specifications so solicited by them for said building, and from paying any person who might have acted as an expert in examining the plans for his services as such; and said city and its common council and all other officers thereof were forbidden to pass any resolution or take any action having for its purpose to validate, directly or indirectly, the proceedings, acts, or doings of the said joint board in respect to the matters aforesaid; and the defendants Ferry <& Olas were forbidden to do any act or take any steps whatever towards the construction of the said building, and from using any of the designs, plans, or ideas embodied in the plans and specifications submitted by the plaintiffs, and from making any contract for the construction of the building. A motion was made to dissolve the injunction, but it was modified so as to restrain the city of Milwaukee, its commofi council, comptroller, and treasurer from auditing, allowing, or paying, in whole or in part, any obligation incurred or attempted to be incurred by said joint board or by the several boards of trustees of said museum and library on account of the plans and specifications mentioned in the complaint, or on account of the services of the expert architect, upon the order of said boards, or either of them, or any of the officers of said boards; and in all other respects the injunction was dissolved.
    Subsequently the trustees of the public library and of the public museum transmitted to the common council the five sets of plans and specifications mentioned, and recommended the adoption of the plans and specifications of Ferry <& Olas, and accompanied the same by a bill of the expenses incurred in the matter of procuring plans and specifications, amounting to about $3,000, including bills for advertising, entertaining the expert, and payment of $500 for each of the five sets of plans specified, selected as the best, and some other apparently reasonable items of expense. Upon the papers on file and the affidavit of one of the plaintiffs, a motion on behalf. of the plaintiffs was made for a further injunction restraining the city of Milwaukee, its common council, comptroller, treasurer, and all other officers or agents of the city from passing any resolution in said council towards auditing or paying any of the bills for moneys for said plans and specifications, or from paying directly or indirectly any portion thereof. The court made an order denying such application, from which the plaintiffs appealed.
    For the appellants there was a brief by F. N. MxvrpJiey and F. O. Fsehweiler, and oral argument by Mr. Mtvrphey.
    
    
      They contended, inter alia, that the sole power of making and entering into eontraots for doing all the work of building the proposed library and museum building is vested in the board of public works, “ by and under the direction of the common council.” Sec's. 10-12, eh. 93, Laws of 1891. The words “by and under the direction of the common council ” mean that that body may determine the size, number of stories, material of construction, time of beginning, and date of coinpletion of the building, and such • general matters only. But when these things have been so determined by the council, the duty to contract for the construction of the building and, as a necessary incident thereto, to employ an architect to prepare plans and specifications for the same, is vested in the board of public works, and no other body can lawfully act. Peterson v. New York, 11 N. T. 454; Dillon, Mun. Corp. § 465, note 1. The power to do these particular acts having been granted by the legislature to the board of public works, it is beyond the scope of the common council to delegate that power or' any part thereof to any other branch of the city government. Lauenstei/n v. Fond du Lao, 28 "Wis. 336; Lord v. Oconto, 41 id. 386; Beach, Pub. Corp. § 216; Mitchell v. Wiles, 59 Ind. 364; People ex rel. Smith v. Flagg, 11 N. Y. 584; Brady v. New Yorlt, 20 id. 312. The legislature has in this case distinctly and directly prescribed by whom the contracts shall be made for doing this work, and in a special manner and independently of the methods prescribed for the usual city buildings; and the method so prescribed must be strictly followed. The provision is mandatory,' and the common council can no more delegate the power of obtaining plans and letting-contracts than they could proceed to erect an almshouse or city hospital, using the funds provided in the special law in question. Fcmners’ L. S T. Go. v. Ga/rroll, 5 Barb. 649; Smith <y. Newburgh, 11 N. Y. 130; Beach, Pub. Corp. § 698; Dickinson v. Poioghlceepsie, 15 N. Y. 65; PeilVy v. Philo-
      
      ■delphia, 60 Pa. St. 467; Stooklon v. Oreanor, 45 Cal. 643. Tbe common council, having no power to contract or solicit -plans, cannot in any manner ratify what has been done by the joint board. Dullcmty v. Vaughn, 77 Wis. 38; Veeder v. Lima, 19 id. 280; Brad/y v. New York, 20 N. Y. 312; Lydd/y v. Long Lsland Gity, 104 id. 218; Durcmgo v. Pervnvngtcm, 8 Colo. 257; Horton v. Thompson, 71 N. Y. 513; Hodges v. Buffalo, 2 Denio, 110; Zottmcm v. Scm Franoisoo, 20 Cal. 96; Hague v. Philadelphia, 48 Pa. St. 527; Hightoay Oommirs v. 'Van Duscm, 40 Mich. ■ 429; McDonald v. New York, 68 N. Y. 23; People eco rel. Ooughlin v. Gleason, 121 id. 631; ■Gates v. -Hancock, 45 N. H. 528. When the charter or a .-statute has committed a class of acts to particular officers or agents other than the general governing body, the proper .functionaries must act and the designations must be observed, and generally no act of recognition can supply a defect in these respects. Peterson v. New York, 17 N. Y. 454; Trester v. Sheboygcm, 87 Wis. 496; Clark v. Janesville, 13 id. 414; Dullanty v. Vaughn, 77 id. 38.
    
      O. H. Hamilton, city attorney, for the respondent city.
    For the respondents Ferry and Olas there was a brief by Winkler, Flanders, Smith, Bottum do Vilas, and oral argument by J. G. Flanders.
    
    
      •Gonrad Erez, for the other respondents.
   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.  