School District No. 4 v. Industrial Commission

.Owen, J.

In proceedings instituted upon its own initiative, the Industrial Commission made an award against School District No. 4, Town of Sigel, in the sum of $1,000, to be paid into the state treasury, under the provisions of sec. 102.09, sub. (4»?),-par. (f) of the workmen’s compensation act, the occasion of such award being the death of one August Olson, resulting from injuries sustained by him while in the course of his employment in building fires in the school district schoolhouse. The school district brought an action in the circuit court for Dane county to set aside the award. The court affirmed the award, and the school district appealed.

During the month of May, and for some time prior thereto, August Olson built the morning ñre in the district schoolhouse, receiving as compensation from the district the sum of ten cents a day. On the 2d day of May, 1924, his clothing took fire, presumably as the result of using gasoline in starting the fire, causing serious burns, from which he died. He had no dependents, and the Indtistrial Commission made an award under sec. 102.09, sub. (4m), par. (f), which provides:

“In each case of injury resulting in death, leaving no person wholly dependent for support, the employer or insurer shall pay into the state treasury such an amount, when added to the sums paid or to be paid on account of partial dependency, as shall equal four times the deceased employee’s average. annual earnings, such payment to the state treasury in no event to exceed one thousand dollars. The payment into the state treasury so provided shall be made in all such cases regardless of whether the dependents or personal representatives of the deceased employee commence action against a third party as provided in subsection (2) of section 102.29.”

By par. (g) of the'same section the moneys so paid into the state treasury are appropriated to the Indtistrial Commission for the discharge of all liability for additional death benefits provided for by said sub. (4m).

The school district claims that Olson was not its employee within the meaning of the compensation act. Sec. 102.07 declares: “Every person in the service of the state, or . . . any . . . school district . . . under any appointment, or contract of hire, express or implied, oral or written, except any official of the state, or of any county, city, town, village, or school district therein,” to be an employee thereof.

The proceedings leading up to the employment of Olson were as follows: The teachers objected to building fires in cold weather. The board talked the matter over in an informal way, and the clerk was instructed to hire some one to build the fires at a sum not to exceed twenty cents a day. This was at an informal meeting of the board. The matter was talked over by the members of the board, but no vote was taken and no record made. Pursuant to these instructions the clerk hired Olson to build the fire. There was no written contract. It is plain that under the statutes and the uniform decisions of this court no express contract was culminated between the district and Olson. Sec. 40.24, Stats., provides that “No act authorized to be done by the board shall be valid unless voted at its meeting.” This court has consistently held that a contract binding upon the school district must be authorized by a vote of the school district board at a meeting of the board. Doyle v. Gill, 59 Wis. 518, 18 N. W. 517; School District v. Baier, 98 Wis. 22, 73 N. W. 448; McNolty v. Board of School Directors, 102 Wis. 261, 78 N. W. 439; Manthey v. School District, 106 Wis. 340, 82 N. W. 132; Caxton Co. v. School District, 120 Wis. 374, 98 N. W. 231. Although it was held in Butler v. Joint School District, 155 Wis. 626, 145 N. W. 180, that “When all the members of the board are present, official action may be taken although the meeting be not formally called or the action formally recorded in the minutes,” nevertheless there has been no departure from the universal holding that any specific contract to be binding upon the school district must be authorized by a vote of the school board taken at a meeting of the board. The meeting may be informal, the vote may not be formal and may not be recorded, but, nevertheless, the contract must be authorized by the combined action of the board.

In this case the board never authorized the contract with Olson. They simply delegated the clerk to employ some one. If the clerk may be delegated to employ some one to build fires at ten cents a day, he may be delegated to employ a janitor at $100 per month, to'employ a teacher, to purchase necessary charts, blackboards, and other equipment. To say that there was an express contract between the school district and Olson would be to authorize the culmination of any other contract which a school district board has the power to make in exactly the same way. This would wipe out the statutory requirement, which has always been rigorously enforced. We must hold that Olson was not in the employ- of the district by virtue of an express contract.

The only question remaining to be considered is whether Olson was in the employ of the district by virtue of an implied contract. The facts from which a contract will be implied against a municipal corporation are quite different from those which raise an implication of contract between natural persons. It is a general rule that no contract will be' implied against a municipality if such implication would conflict with the statute prescribing a mode of contracting by which alone the municipality may bind itself. Appleton Waterworks Co. v. Appleton, 132 Wis. 563, 113 N. W. 44; Cawker v. Central B. P. Co. 140 Wis. 25, 121 N. W. 888. The statute explicitly provides that a contract with the school district must be authorized by a vote of the school district board at a meeting thereof. To say that a contract will be implied in the absence of such authorization would be to entirely wipe out this provision of the statute, and it must be held that Olson was not in the employ of the district by virtue of an implied contract. From this it results that the relations existing between Olson and the school district were not such as to bring them under the terms of the workmen’s compensation act, that the school district is not subject to the award which the Industrial Commission made, and that the award should be set aside.

By the Court.- — Judgment reversed, and cause remanded with instructions to enter judgment vacating the award of the Industrial Commission.