#### Lauenstein vs. The City of Fond du Lac.

Oitv Cuartee: (1, 2) *Charter of Fond du Lac*— Power *to contract for school house*site, *in whom vested; such power cannot he delegated.*.

Pleading: (3) *Av&i’ment of power in city officers*— Averment *of ratification.*

1.' The charter of a city gives the common council a general power to purchase land for the necessary purposes of the corporation; hut hy. another section it provides that the hoard of education shail have power, with the consent of the common council, to huy sites for school houses in said city. *Held,*that the general power of the council is qualified hy this provision, and that a valid purchase of a site for a school house can he made only hy the concurrent action of the two bodies.

2. The hoard of education and common council cannot delegate the power of purchasing a school house site to a hoard of commissioners of said city, without an express grant from the legislature of authority to do so.

3. In an action upon an alleged contract of the city to purchase for a school house site certain land of plaintiff at an agreed price, the complaint ‘ alleged that the contract was entered into by the hoard of public works in behalf of the city; that said hoard was authorized and empowered hy the city to enter into said contract; and that the city subsequently ratified it: *Feld, on demurrer,*

(1.) That the allegation of power in the hoard of public works is insufficient, no statute appearing to confer any such power upon that hoard, or authorize a delegation of such power to it; and there being no averment of any action hy the common council or hoard of education in relation thereto.

(2.) That the averment of a *ratification*of such contract hy the defendant is insufficient, no acts constituting such ratification being alleged.

APPEAL from tbe Circuit Court for *Fond duLac*County.

The court overruled a demurrer to the complaint as not' stat-*337mg a cause of action; and tbe defendant appealed. Tbe substance of tbe complaint is stated in tbe opinion.

*K. 0.*Giffin, for appellant,

to tbe point tbat tbe averment of authority in tbe board of public worts, derived from tbe defendant city, to make tbe contract sued on, was an averment merely of a conclusion of law, and insufficient, cited *Myers v.*Machado, 6 Duer, 678; and *Supervisors of Franklin v. Kirby,*25 Wis., 498. He also argued tbat tbat board could bave no power under tbe charter to enter into sucb a contract; tbat tbe power was vested in tbe board of education, and could not be delegated to tbe other board; and tbat tbe averment as to ratification was insufficient.

*Grillet, Pier & Pass,*for respondent.

[No brief.] '

Lyoh, J.

Tbe action is to recover damages for tbe alleged breach of tbe covenants of a written contract set out in the complaint. Tbe substance of sucb contract is, tbat tbe plaintiff agrees to sell and tbe defendant to purchase certain premises therein described, situated within said city, for eighteen hundred dollars, to be paid January 30th, 1870, with seven per cent, interest; and on payment being so made, tbe plaintiff agreed to convey said premises to tbe defendant, by deed with full covenants, free and clear of all liens and incumbrances. Tbe contract bears date October 1st, 1869, and by its terms gave tbe defendant immediate possession of the premises. It purports to bave been executed by tbe plaintiff, and by three other persons who style themselves tbe “ Board of Public Works of tbe Oity of Pond du Lac.”

Tbe complaint alleges tbat tbe three persons last mentioned were, when sucb contract was executed, a board of public works in and for said city; tbat they made sucb contract for and on behalf of tbe defendant; tbat they were authorized and empowered by tbe defendant to do so ; tbat since tbe execution of tbe contraot tbe defendant has fully ratified it; tbat it has been duly countersigned by tbe comptroller of tbe defendant; and'that the-*338premises described therein were purchased for a school house site. The plaintiff, in his complaint, avers readiness to perform the contract on his part; charges that the defendant refuses and neglects to perform it on its part; and demands judgment for $1,800 and interest. The defendant interposed a demurrer to this complaint, assigning as ground thereof that the complaint does not state facts sufficient to constitute a cause of action.

Erom an order of the circuit court overruling such demurrer, the defendant appeals to this court.5.

We are clearly of the opinion that the complaint fails to state a cause of action against the city.

The only *specific*power to purchase land for school house sites, conferred upon the defendant by law, so far as we are able to find, is contained in section 6 of chapter 18 of the city charter. Private and Local Laws of 1868, chapter *59,*p. 143. It is there provided that the board of education shall have *the*power, by and with the consent of the common council, to buy sites for school houses in said city. It was doubtless the intention of the legislature to require the concurrence of both bodies, the board of education and the common council, in the purchase of land for a school house site. The general power to purchase land for the necessary purposes of the corporation, which is given to the defendant by section 2 of chapter 2 of its charter, doubtless includes, in the absence of any other provision on the subject, the power to purchase the same for school house sites; but it is quite evident that such *general*power must be exercised, in any given case, in the manner provided by law, where there is any special provision of law on the subject. In respect to the purchase of land for a school house site, there being such special provision, the purchase must be made in ..accordance therewith, or the city is not bound.

The-complaint does not aver that either the board of educa•tion or the common council have had anything to do with the .alleged contract of purchase, or any connection with it.

It is true, the complaint states that the members of the board *339of public works, wbo made this contract on bebalf of tbe city, were authorized by tbe city to make it, and that, since tbe execution of it, tbe city bas fully ratified it; but we are not informed as to tbe manner in wbicb sucb authority was conferred, or by what acts sucb ratification was accomplished.

"We have not bad tbe benefit of an argument or a brief on bebalf of tbe plaintiff; but we have examined tbe charter of tbe defendant with considerable care, and have found no provision wbicb permits tbe board of education and tbe common council to delegate to tbe board of public works tbe power to purchase a school bouse site. If tbe charter contains any sucb provision, we have overlooked it Without sucb provision, we are at a loss to understand bow tbe power can be so delegated. As at present advised, therefore, we do not think tbe allegation that tbe board of public works bad full power and authority to enter into tbe contract in question on bebalf of tbe defendant, bas any force or significance.

If tbe defendant bas done acts since tbe execution of tbe contract wbicb are a legal ratification thereof, tbe well settled rules of pleading seem to require that sucb acts should be set out in tbe complaint.

We think tbe demurrer should have been sustained. Tbe order overruling it must be reversed, and tbe cause remanded for further proceedings according to law.

*By the Court.*— It is so ordered.