Harley v. Lindemann

Maeshall, J. The order complained of, as will be seen from the statement, was entered upon the theory that ch. 273, Laws of 1905, may be unconstitutional and that respondent may on that account finally obtain judgment as prayed for, and that without the status quo being preserved in the meantime the purpose of the litigation will nevertheless be defeated, to respondent’s irreparable injury, while such preservation will not work any material damage to the public. — 519 — The motion to vacate the temporary injunction challenged the sufficiency of the complaint (Judd v. Fox Lake, 28 Wis. 583), so all questions in that regard are before us for consideration. It is a cardinal principle in the administration of justice that a legislative enactment should not be adjudged void in any action unless the solution of the question in that regard is deemed necessary in order to reach a just conclusion in the cause. That rule, it seems, should be given all the force reasonably attributable thereto in this case, since the constitutional question considered by the trial court, and upon •which counsel for respondent relies, has not been argued upon the opposite side. • Counsel for appellants insist that the facts alleged in the complaint afford no ground for the relief prayed for, even if the law of 1905 be invalid as claimed. So, as stated, they have declined to reply to counsel for respondent on the constitutional question. Up to the time of the commencement of the action, as shown, no injury had been done to respondent. The most that is claimed is that a wrong was threatened and unless prevented by the court the threat would be carried out. So the purpose of the action is to guard against the mere danger of such threat being executed. The change in text books sought tó be prevented, obviously, cannot occur till the school board shall have adopted the report of its committee recommending the same. There is no showing of facts in the complaint, nor can it be implied, that should such adoption occur plaintiff would not thereafter have ample opportunity by some appropriate action to prevent any injury to him. The situation is wholly unlike those where the issue of municipal bonds was threatened, which might go into the hands of innocent purchasers and in such hands be valid obligations, or there was a threatened improper diversion or disbursement of public money or disposal of public property, any of which threats would necessarily involve danger of irremediable pe — 520 — cuniary loss to tbe taxpayers of tbe municipality. The following were eases involving sucb situations: Peck v. School Dist. No. 4, 21 Wis. 516; Lawson v. Schnellen, 33 Wis. 288; Lynch v. E., La F. & M. R. Co. 57 Wis. 430, 15 N. W. 743, 825; Willard v. Comstock, 58 Wis. 565, 17 N. W. 401; Fowler v. Superior, 85 Wis. 411, 54 N. W. 800; Kyes v. St. Croix Co. 108 Wis. 136, 83 N. W. 637. Here tbe threatened act if carried out would not involve any irreparable injury whatever to respondent unless be would be entirely without an adequate remedy for any wrong done to him in case of tbe action being illegal. Counsel, fully recognizing that it was essential to a good complaint in tbe action to show that if tbe threatened act was not prevented it would occur not only to bis injury but to bis irreparable loss, alleged “plaintiff and those similarly situated have no adequate remedy at law in tbe premises and are helpless to prevent tbe great loss and expense” referred to in tbe complaint “unless a court of equity shall interfere to prevent same.” Consistently with that, as we understand it, counsel conceded on tbe argument that unless tbe equitable remedy invoked when tbe action was commenced was necessary to plaintiff’s protection, it was improperly invoked. Obviously, tbe mere act of tbe board, should it approve tbe report of its committee as to making the change in text books recommended, would not injure respondent. Tbe injury would come to him, if at all,-when tbe determination of tbe board should be enforced by denying to bis children tbe benefit of tbe public schools unless be complied with tbe new regulation, and be could then, as it seems, by a plain legal action of mandamus redress tbe wrong, fully, by compelling recognition of tbe right of bis children to sucb benefits regardless of sucb regulation, as was done in State ex rel. Adams v. Burdge, 95 Wis. 390, 70 N. W. 347. There tbe relator’s children bad been denied school privileges except upon condition of their submitting to a regulation of tbe state board — 521 — -of health, requiring applicants for such privileges to present •certificates of vaccination. The same principle was applied in State ex rel. Bowe v. Board of Ed. 63 Wis. 234, 23 N. W. 102, and State ex rel. Smith v. Board of Ed. 96 Wis. 95, 71 N. W. 123. In the former the court held as a general principle, as stated in the syllabus: “The parent of a child wrongfully suspended from a public school may proceed directly, by mandamus, against the board of education which has the power and whose duty it is to reinstate the child.’ In the latter the wrongful exaction of. a tuition fee by the teacher and principal of the school as a condition of allowing a pupil to remain in school, was remedied by a mandamus action. The following cases from other jurisdictions are to the same effect: State ex rel. Flowers v. Board of Ed. 35 Ohio St. 368; State ex rel. Roberts v. School Directors, 74 Mo. 21; Smith v. Directors, 40 Iowa, 518; Dove v. Independent School Dist. 41 Iowa, 688; People ex rel. Workman v. Board of Ed. 18 Mich. 400; Ward v. Flood, 48 Cal. 36. State ex rel. Flowers v. Board of Ed., supra, seems to be directly in point on the facts and principle involved as well. There had been an illegal change in text boohs determined upon and put in execution. The procedure leading up thereto was very much the same as that detailed in the complaint in this case. A mandamus action was thereupon commenced compelling the board of education and the superintendent of schools to allow the relator’s child and all other pupils in the school to use the text boohs claimed to have been illegally discarded. The question of whether the relator invohed the proper remedy was specially considered and decided in the affirmative, the court, speahing by GilMOEE, C. J., saying: “The relator was a resident taxpayer of the city of Columbus and of the school district, and was also the father of a child who was of school age, who was attending school in the city, and for whose use, in school, he had purchased and paid — 522 — for Harper’s geographies . . . He bad, therefore, a pecuniary, and also a parental, interest in having the public schools of the district controlled and conducted in the manner prescribed by the statute; and these interests are sufficient to-enable him to maintain this proceeding.” The same remedy was resorted to, to reinstate a pupil excluded from the schools on the ground of color, the superintendent of schools being proceeded against, in Ward v. Flood, supra; and in Smith v. Directors, supra, the same remedy was used for a like purpose. See, also, Merrill, Mandamus, § 115, and High, Extr. Leg. Rem. (Bd ed.) § 332. An examination of the authorities referred to shows very clearly that in all cases where a child who is entitled to attend the public schools is illegally excluded therefrom upon any ground, or who has been received into such schools and is nevertheless illegally deprived of his rights therein, the parent or guardian of such child is clearly entitled to the legal remedy by mandamus to redress the wrong. It follows from the foregoing that,- — admitting all the allegations in the complaint to be true as regards want of authority of the defendants to do the alleged threatened act; that such want of authority grows out of ch. 273, Laws of 1905, being unconstitutional; and that unless restrained by the court they will adopt the report of the committee as to changing text books and put their determination in force,— instead of respondent and those similarly situated being, as-alleged, helpless to redress the wrong done to them, the legal remedy by mandamus will be available for that purpose; will afford a safe, speedy, and efficient remedy; and the use of it under the circumstances will be in accordance with the uniform practice of this court and of courts generally. So we have presented the question of whether, in case of a mere threatened act of a public nature which in case it should' occur would injuriously affect taxpayers and citizens of the municipality, but not irreparably, because of a plain legal,. — 523 — speedy, and adequate remedy to redress tbe wrong, tbe jurisdiction of equity should be usable to prevent tbe threat from being carried out. It seems that tbe decision must be in the-negative and that tbe question is thus ruled by several decisions of this court, particularly Judd v. Fox Lake, 28 Wis. 583; Gilkey v. Merrill, 67 Wis. 459, 30 N. W. 733; and Sage v. Fifield, 68 Wis. 546, 32 N. W. 629. In tbe first case cited,t after stating tbe facts alleged showing tbe claim of tbe plaintiff to be that there was merely an injury threatened, which, should it occur, would be remediable, tbe court said: “Tbe complaint presents, therefore, tbe naked question,, whether under such circumstances tbe aid of equity can be successfully invoked to declare in advance that certain acts-of public officers, proposed or threatened in tbe future to be done, will, if performed, be illegal and void. We are clearly of tbe opinion that it cannot.” In tbe last case cited, which was a taxpayer’s action to restrain a threatened injury, tbe court, speaking by Justice-Taylor, said: “If tbe authorities of tbe municipality fraudulently squander its property and assets tbe taxpayer is irreparably injured, because it necessitates tbe collection of greater taxes to pay tbe legitimate charges against tbe municipality; and unless, therefore, tbe taxpayer can restrain tbe unlawful and fraudulent disposition of such property of tbe municipality, be is entirely remediless. None of tbe cases in this court, since tbe case of Judd v. Fox Lake, are in conflict with tbe decision in that case. The rule there laid down was approved and acted upon in tbe case of Gilkey v. Merrill, 67 Wis. 459, 30 N. W. 733. We think that tbe circuit court should have dissolved the injunction on tbe ground that the complaint did not state facts sufficient to constitute an equitable cause of action.” From what has been said we feel bound to bold that the' complaint fails to state any cause of action. If any action could be brought in equity at all it could not properly be commenced because of a mere threatened illegal act, which, if it — 524 — were to occur, would be readily remediable. Tbis renders it unnecessary to examine the constitutional question so ably presented by counsel for respondent. By the Court. — The order is reversed, and the cause remanded with directions to vacate the temporary in junctional order.