Martin v. Common School District No. 3

Wilson, C. J. Plaintiff appeals from an adverse judgment in his action for damages for an alleged breach of teacher’s contract. *429 The school hoard of a common school district is the exclusive agency for the making of teachers’ contracts. G. S. 1923, § 2903; Leland v. School Dist. No. 28, 77 Minn. 469, 80 N. W. 354; Andrews v. School Dist. No. 4, 37 Minn. 96, 33 N. W. 217; McGuiness v. School Dist. No. 10, 39 Minn. 499, 41 N. W. 103. No contract shall be made or authorized by the board except at a meeting of the board of which all members have had legal notice. G. S. 1923, § 2814.-The chairman and clerk, failing to comply with the statute and without a notice to the treasurer, held a meeting and prepared, executed and submitted to plaintiff a written teacher’s contract of employment. It recited that it was made “by the school board at a meeting called for that purpose.” Plaintiff relied thereon. He signed it. The recital was untrue. The contract was a nullity. By the terms of the instrument the employment was for nine months beginning on September 8, 1924. On August 2, 1924, the board notified plaintiff that his contract was void because there had been no meeting of the board. Plaintiff asserted the validity of his contract and now claims that defendant is estopped to urge its invalidity. Persons contracting with municipal corporations must at their peril inquire into the powers of such corporations. Newberry v. Fox, 37 Minn. 141, 33 N. W. 333, 5 Am. St. 830; State v. Minn. T. Ry. Co. 80 Minn. 108, 83 N. W. 32, 50 L. R. A. 656; Jewell Belting Co. v. Village of Bertha, 91 Minn. 9, 97 N. W. 424; Spitzer v. Board of Trustees, 267 F. 121. The conduct of the two members of the board and the recital in the alleged contract cannot create an estoppel against the municipality. Newberry v. Fox, 37 Minn. 141, 33 N. W. 333, 5 Am. St. 830; Board of Co. Commr’s. v. Nelson, 51 Minn. 79, 52 N. W. 991, 38 Am. St. 492; Young v. Bd. of Ed. 54 Minn. 385, 55 N. W. 1112, 40 Am. St. 340; Board of Co. Commrs. v. Dickey, 86 Minn. 331, 90 N. W. 775; State v. Foster, 104 Minn. 408, 116 N. W. 826; State v. Merchants Nat. Bank, 145 Minn. 322, 177 N. W. 135; State v. Shevlin- Carpenter Co. 102 Minn. 470, 113 N. W. 634, 114 N. W. 738. The two trustees had no authority to make a contract. They were powerless to make a recital that would have the effect of an *430 executory contract. To permit such a result would be to authorize the making of a contract indirectly which could not be made directly. Doubtless there are cases in which the doctrine of estoppel may be applied to a municipality, but our attention has not been called to any case in which it has been held that a municipality is estopped from asserting the invalidity of an executory contract. On August 30, 1924, at a special meeting of the voters of the' school district, a resolution was adopted in form ratifying and confirming plaintiff’s alleged contract. It is now sought to sustain the contract by virtue of such ratification. This cannot be done. The sections of the statute above cited provide the only way by which a contract may be made by the municipality. That power is invested in the board alone. The ratification can be made only by the body authorized to make such contract. 28 Cyc. 676; Zottman v. City of San Francisco, 20 Cal. 96, 81 Am. Dec. 96; City of Sioux City v. Weare, 59 Iowa, 95, 12 N. W. 786. The contract was not beyond the power of the board to make and hence was susceptible of ratification. Minneapolis, St. P. R. & D. E. T. Co. v. City of Minneapolis, 124 Minn. 351, 145 N. W. 609, 50 L. R. A. (N. S.) 143. But the ratification could be made by the board only, and then only by acts as formal as those which were necessary to enter into the contract in the first instance. Plaintiff’s attack upon the right and title of the treasurer to his office on the ground that' he had not filed a bond as provided by law until this controversy arose, is futile. He was at least a de facto officer. He exercised the duties of his office under color of title. His right and title to the office can be attacked only in a. proceeding brought direct for that purpose. So far as plaintiff was concerned the acts of a de facto officer were as valid as the acts of an officer de jure, and he must be counted in reckoning a quorum. Affirmed.