Klaus v. City of Greek Bay

Cole, J. The plaintiffs brought this action under the provisions of ch. 150, Laws of 1873. They allege in the complaint that in the months of November and December, 1870, they furnished lumber and building materials to the defendant Maynard, who was a contractor for the erection of a school house for the city, which materials were worth $358.60, and were in fact used in the construction of said school house. They further allege that Maynard has not paid the debt, nor any part thereof, and that the city is indebted to him on his contract for the erection of the school house, in the sum of $1;000 and upwards, which amount is now due and owing from the city. They demand a judgment against the city for the amount due them by the contractor, Maynard, and interest. The complaint is demurred to on several grounds, only one or two of which do we deem it necessary to notice. It is objected that there is a defect of parties defendant, and that the board of education of the city should have been united in the action. Under the provisions of the city charter, the mayor and common council elect school commissioners, who form the board of education. This board, among other duties, employ teachers; establish rules and regulations for the schools; furnish fuel; make all necessary repairs, not exceeding one hundred dollars, on school houses; and, with the approval of one635 third of the whole number of aldermen, enter into contracts for the purchase of school sites and the erection of school buildings thereon. Ch. 12 of the charter (P. & L. Laws of 1870, ch. 436). Now, as the board of education made the contract with Maynard for the erection of the school house in question, it is claimed that such board is a necessary party to this action. This position we deem untenable. It is very obvious that the board of education is not a distinct and independent corporation by itself, but is a mere branch of the city government. See Terry v. City of Milwaukee, 15 Wis., 490. The object of giving the school commissioners chosen by the mayor and common council, general control of the public schools, was doubtless to secure greater efficiency and system in their management and organization than would likely result from placing the schools under the direct supervision of the aldermen of the city. Persons chosen for school commissioners generally have some peculiar fitness and qualifications for the organization of schools; some experience in their management, and some intelligent views as to the course of study and text books best to be adopted — qualifications not often possessed by those who have not at some time been connected with the cause of education and the profession of teaching. But, after all, the school commissioners are merely agents and officers of the city, and constitute a part of the city government, and act for the municipality in matters relating to the public schools. The contracts which the board of education enterinto in the discharge of their legal duties, are the contracts of the city, and binding upon it. But it is not essential or proper that the board be a party to an action for the enforcement of these contracts. The city is the responsible party upon the contract made by the board of education with Maynard. The only other question which we deem it important to notice, is that arising upon the law of 1873 above referred to. It is contended on behalf of the city, that this enactment is, by its terms, prospective in its operation, and was not intended to [636] apply to a case where the materials were furnished to a contract- or prior to the passage of the law., The language upon which this argument is founded, is the following: “ Any subcontractor who shall have done work or furnished material at the request or upon contract with a principal contractor, for the construction ” of a building for a town or city, may. maintain an action, etc. Now it is said that the words “ who shall have done work,” etc., plainly refer to the future and not to the past. Of course these words must be construed with reference to the subject matter of this statute, and in view of the object of its enactment. And when considered in that light, _we think it is plain that as here used they refer as well to past as to future transactions. The obvious intention seems to have been to afford a remedy to a subcontractor who had done work or furnished materials to a contractor which were used or performed in the construction of a public building for a town, city or village, by means of which such subcontractor might recover his debt from the town, city or village to the amount of its indebtedness to the principal contractor. It is in the nature of a garnishee proceeding, and must be liberally construed. "We see no satisfactory reason for holding that the law was not intended to apply to existing cases. These words in a certain class of statutes would undoubtedly be construed as relating to the future, on account of the unjust consequences which would result from a different interpretation. But there is nothing in the language, when considered with reference to the object of this law, which requires that they should have this restricted application. This and similar language is frequently used in statutes which have been held to operate retrospectively, and we have no doubt the legislature intended that the remedy should apply to a case like the one before us. Brigham v. Bigelow, 12 Met., 268. But it is further objected that if the legislature intended the law to apply to past transactions and to cases existing at the time of its passage, then it is unconstitutional and void. If [637] the character of this enactment is regarded, there would seem to he no difficulty in sustaining it. It is a remedial statute, and is subject to far different rules and principles than those which apply to penal enactments, or those attempting to destroy vested rights. If this statute, instead of providing a remedy, attempted to disturb vested rights, or to create a debt or obligation where none existed before, it would be open to the criticism of the counsel for the city. But that is not its purpose or design. It imposes no new liability upon the city, but merely provides that the city shall pay its indebtedness due Maynard to the latter’s creditor. It is strictly a remedial statute, affording new means for enforcing an existing obligation. And the doctrine is well settled, that a remedial statute may have a retroactive effect, providing it does not impair contracts or disturb vested rights. This feature in the law before us, which only gives a remedy in the nature of a garnishee proceeding against the city, renders the decisions in State v. Atwood, 11 Wis., 422; Seamans v. Carter, 15 id., 548; and Finney v. Ackerman, 21 id., 268, entirely inapplicable. It is unnecessary to dwell upon the distinction in the cases; but an examination will show that the doctrine of those cases does not condemn a law which is purely and strictly remedial, creating no new rights, destroying no vested interests, impairing no obligations, imposing no liabilities or penalties where none existed before its passage. If the city pays the amount of its indebtedness to Maynard on a judgment recovered by the plaintiffs against him, it will be discharged from all liability to Maynard. That is all there is of this law, and it seems to us it was entirely competent for the legislature to enact it. It is noticeable that Maynard is not here objecting that the debt due him from the city shall be so applied. We think the complaint states a cause of action, and that the demurrer was properly overrruled. By the Court — Order affirmed.