Scott v. Board of School Directors of Armstrong

Dodge, J. 1. The order in question is clearly appealable. The right of appeal from an order is absolutely statutory. [283] Sec. 3069, Stats. 1898, in express terms authorizes an appeal from an order which sustains a demurrer. There is neither ambiguity nor room for construction in applying that statute to this order, which in terms does sustain the demurrer. Tt is wholly unnecessary to review what has been said by this court with reference to the effect of ch. 21-2, Laws- of 1895, in taking away the formerly existing right of appeal from an order simply granting or denying a motion to strike out a demurrer as frivolous. Such authorities, cited by respondents, have no application to the present case, where, while the order does deny the motion to strike out a demurrer as frivolous, it also in terms sustains the demurrer, and thus comes within the provisions of statute authorizing appeals. 2. The so-called school orders in question are as distinctly obnoxious to the rule laid down in Kane v. School Dist. 52 Wis. 502, as the documents there considered. The fact that a part of the terms of an order is, by the same authority which authorizes its issue, written upon the back of it, instead of above the signatures, is a distinction without a difference. The indorsement making these orders payable one year after they were issued was an essential part of the instruments, when they gained original existence by issue and delivery. It is futile to say that there is a presumption in favor of the authority to issue the orders in terms payable presently, and that the illegal indorsement may be disregarded; for, by the very allegations of the complaint, it appears that that authority was limited to issuing them, with the further condition indorsed that they should not be payable until a year later. These are attempted orders upon the treasurer to pay out of funds which necessarily cannot be in his hands until after the next tax levy. They are an anticipation of the revenues of the district for the ensuing-year, and, as such, are strictly prohibited by the purpose of the statute, as defined in Kane v. School Dist. [284] Counsel for appellant argue that the district has power to borrow money, and these orders should, by application of the maxim, omnia rite acta, be construed as an exercise of that power, and should raise a presumption that the necessary steps had been taken. Without at all conceding that a promise to pay money by a school district would raise a presumption that it had complied with the steps necessary to authorize it to borrow money, it is sufficient to point out that these orders upon their face exclude the assumption that they are issued in attempted exercise of that power. The one is in terms issued in payment for school-house lumber, and the othór for hauling such lumber. They clearly evidence an attempt to purchase lumber and employ labor on credit, which is a very different thing from borrowing money. If plaintiff has a cause of action for lumber delivered or for work done, he has stated none of the facts necessary to support it. The demurrer was properly sustained. By the Court.— Order sustaining demurrer affirmed.