
    State of Wisconsin vs. Louis E. Torinus and others.
    March 20, 1879.
    Public Officer — Ultra Vires — Ratification by Legislature. — Where an agent of a state exceeds his authority in selling and delivering the property of his principal, and taking a note therefor from the purchaser, the legislature of the state may, bjr a statute duty enacted for that pur-pose, in the absence of any constitutional prohibition against it, ratify the act of the agent in making the sale and receiving the note; and the state thereupon may enforce payment of the note the same as an individual.
    The state of Wisconsin brought this action, in the district; court for Washington county, as endorsee of a promissory-note made by defendants to the order of one Harriman. Theaverments of the complaint are, in substance, as follows:
    On March 3, 1869, the legislature of Wisconsin passed an act authorizing the governor to appoint one or more agents whose duty it should be to preserve and protect the timber growing on the lands theretofore granted by congress to the state to aid in the construction of railroads, and to seize, in the name and on behalf of the state, all logs and timber that should be cut or carried away from such lands without lawful authority, and to sell the same at public auction, to the highest bidder for cash, the money to be immediately paid into the state treasury. From May, 1869, until 1874, Harriman was the duly appointed agent of the plaintiff, under this act, and in the summer of 1873 he seized a large quantity of pine saw logs which the defendants, during the previous winter, had wrongfully cut on certain of the lands described in the act and belonging to plaintiff,, and had driven to the St. Croix boom. The logs thus seized, Harriman advertised for sale at public auction, for cash, to the highest bidder, and at the sale, on July 25, 1873, they were struck off and delivered to the defendants, who at once converted them to their own use, and have never paid the plaintiff anything therefor.
    On December 23, 1873, the defendants, in consideration of such sale and delivery, made the note in suit, whereby they promised to pay to Harriman or order $8,799.66, on May 1, 1874, with interest at ten per cent, per annum, which note, before maturity, was endorsed and delivered by Harriman to the plaintiff.
    On February 15, 1878, the legislature of Wisconsin passed an act expressly ratifying and confirming the sale made by Harriman to the defendants, and the note taken by him on account thereof, and making the same valid from the beginning as fully as if he had always had full authority to sell on credit and to take the note. Immediately aftei; the passage of this act the present suit was brought.
    A general demurrer to the complaint was overruled by Brill, J., acting for the judge of the first district, and the defendants appealed.
    In a former suit between the same parties, on the same note, prior to the act of 1878, the defendants had judgment on the ground that as Harriman had no authority to sell except for cash, the sale made by him was unauthorized and .void, ancf the note, having no other consideration than the sale, was also null and void, and that the sale could be ratified and made good, only by act of the legislature of Wisconsin. See 24 Minn. 332.
    
      McCluer é Marsh, and Bigelow, Flandrau & Clark, for appellants.
    The note sued on is void, and not voidable, (State of Wisconsin v. Torinus, 24 Minn. 332,) and being void, it cannot be ratified or confirmed. Bishop on Cont. § 155; Bryce’s Ultra Vires, 377, 462; Hasbruck v. City of Milwaukee, 13 Wis. 37; County Com'rs v. Carter, 2 Kans. 117; Menges v. Dentler, 33 Pa. St. 495; Richards v. Rote, 68 Pa. St. 248 ; Shonk v. Brown, 61 Pa. St. 321; Hathaway v. Moran, 44 Me. 67; Adams v. Palmer, 51 Me. 481; Banchor v. Mansel, 47 Me. 59; Springheld Bank v. Merrick, 14 Mass. 322; Milne v. Huber, 3 McLean, 212; West v. Robey, 4 N. H. 285; Cooley Const. Lim. 369.
    
      Davis, O’Brien & Wison, for respondent,
    argued that the sale was not void, but merely voidable, and therefore capable of ratification. Clark v. Jones, 1 Denio, 516; Wildes v. Vanvoorhis, 15 Gray, 143; and that this court, in 24 Minn. 332, held that the sale might be ratified by the legislature, and in effect held that the former action, having been brought before any ratification, was premature. Barrows v. Kindred, 4 Wall. 399.
    As instances of valid legislative ratification of acts of public officers ultra vires, and legalization of acts and contracts previously invalid by statute, they cited Meighen v. Strong, 6 Minn. 111 (177;) Thompson v. Morgan, 6 Minn. 199 (292;) Kunkle v. Town of Franklin, 13 Minn. 127; Comer v. Folsom, 13 Minn. 219; Satterlee v. Matthewson, 16 Serg. & Rawle, 169; s. c. 2 Peters, 380; Walter v. Bacon, 8 Mass. 468; Inhabitants of Bridgewater v. Inhabitants of Plymouth, 97 Mass. 382; Weed v. Donovan, 114 Mass. 181; Denny v. Mattoon, 2 Allen, 361; Thomson v. Lee County, 3 Wall, 327; Bass v. 
      Columbus, 30 Ga. 845; McMillen v. Boyles, 6 Iowa, 305; Bridgeport v. Railroad Co., 15 Conn. 475; Savings Bank v. Allen, 28 Conn. 97; Winchester v. Inhabitants of Corinna, 55 Me. 11; Wilson v. Hardesty, 1 Md. Ch. 66 ; Lewis v. McIlvain, 16 Ohio, 347; Trustees v. McCaughy, 2 Ohio St. 152; Hess v. Roberts, 8 Serg. & Rawle, 356; Fowler v. Throckmorton, 6 Blackf. 326; Andrews v. Russell, 7 Blackf. 474; Grimes v. Doe, 8 Blackf. 371; Curtis v. Leavitt, 15 N. Y. 151 — 2; Washburn v. Franklin, 35 Barb. 600; Watson v. Mercer, 8 Peters, 88; Gibson v. Hibbard, 13 Mich. 214; State v. Lambert, 12 Md. 195; Harris v. Rutledge, 19 Iowa, 389; Selsby v. Redlon, 19 Wis. 1; Blount v. Janesville, 31 Wis. 648; Mills v. Charleton, 29 Wis. 400; Cooley Const. Lim. 372, 376.
   Cornell, J.

In respect to the other point suggested by the defendants, in respect to the character of the plaintiff’s title to the property which it sold to the defendants, it is fully answered by the case of Schulenberg v. Harriman, 21 Wall. where it was held that the legal title, of the state to the lands from which the logs in question were taken was an absolute one, and that a stranger to the grant under which the state holds its title, cannot raise any question upon the non-performance of any of the subsequent conditions contained in such grant. The same doctrine is also explicitly held in Baker v. Gee, 1 Wall. 333.

Order affirmed. 
      
      G-ilfillan, C. J., on account of illness, did not sit in this case.
     