State ex rel. City of Manitowoc v. Green

Cassoday, C. J. The view we have taken of this case makes it unnecessary to consider all the questions discussed by counsel. 1. It is claimed on the part of the defendants that the relator has mistaken his remedy — that if he has any remedy it is by quo warranto and not by mandamus. “The proceeding by quo warranto is the proper and appropriate remedy for trying and determining the title to a public office and of ascertaining who is entitled to hold it, of obtaining the possession of an office to which, one has been legally elected and has become duly qualified to hold, and also of removing an incumbent who has usurped it, or who claims it by an invalid election, or who illegally continues to hold it after the expiration of his term.” Meckem, Pub. Off. § 478, This is not a proceeding to oust an actual incumbent of an office and admit another to the same, nor is it a proceeding to test the validity of a 'statute under which the offices held by the defendants were created. Id. It was held by this court long ago: “A mandamus will issue only where it appears that there is some officer in being having the power and whose duty it is to perform the act commanded by the court.” State ex rel. Carpenter v. Beloit, 21 Wis. 280. The person so sought to be commanded must, at least, be a de facto officer. Id. Such ruling is fully sanctioned by Mechem, Pub. Off. § 939. See State ex rel. Mercer v. Sullivan, 83 Wis. 416, 53 N. W. 677; State ex rel. Jones v. Oates, 86 Wis. 634, 57 N. W. 296. The defendants in this case did not usurp or intrude themselves into the offices held by them [331] respectively. If they committed any wrong it consisted in-continuing to exercise the functions of the offices after the-right to do so had ceased. They rightfully came into the possession of such offices and were, at least, de facto officers at the-time the writ was issued, and hence had power to obey the mandate of the court whatever it might he. The purpose of the writ is to compel the defendants to turn over to the new hoard of education of the city, appointed by the mayor pursuant to the proceedings mentioned in the foregoing statement,, all records, boohs, papers, bonds, inventories, hills, vouchers,, contracts, and all property, real and personal, in their' possession as officers of such districts. Such property belonged to-the public and was devoted to the use of the public, and we-perceive no reason why mandamus is not the proper remedy to determine the rightful custodians of such property and.to-secure their possession of the same. State ex rel. Jones v. Oates, supra; State ex rel. McCoale v. Kersten, 118 Wis. 287, 292, 293, 95 N. W. 120; State ex rel. South Milwaukee v. Fowle, 103 Wis. 388, 79 N. W. 419. In this last case a city was created out of a former village, pursuant to the general-charter, and it was held that the government and administration of all schools within the territorial limits of the city devolved upon the new hoard of education, when elected, provided for by secs. 925 — 113 to 925 — 116, Stats. (1898), and that “thereupon the powers and functions of the former governing hoards ceased and the [new] hoard of education is entitled to the possession and control of the schoolhouses, records,' hooks, property, school library, etc., remaining in the-hands of the former governing hoards, and on demand therefor and refusal to deliver the same such right can he enforced' by mandamusWe must hold that the relator has not mistaken his remedy. 2. It is further urged on the part of the defendants that the ordinance adopted by the common,council of the city July 7, 1905, to amend the special charter by incorporating therein [332] secs. 925 — 113 to 925 — 119, Stats. (1898), with all amendments thereto, is mill and void by reason of the facts found by the court and mentioned in the foregoing statement, and especially by a failure to give the requisite notice for such action of the council prescribed by the statute. Sec. 926, Stats. (1898). On the part of the relator it is claimed that whatever irregularities or defects there may have been in such adoption of the ordinance, they were all cured by ch. 165, Laws of 1899, and that the defendants are thereby barred from taking advantage of such defects and irregularities in this action. Omitting what is not applicable here, that act declares : “In any case . . . where the common council of any city incorporated by special act shall have undertaken and assumed to adopt, in whole or in part, the provisions of the general city charter law of this state, and such city and its officers shall have assumed thereafter in good faith to act under and to exercise the powers conferred by the provisions of law so assumed to be adopted, any question of the validity of such assumed adoption and of the ordinance and proceedings therefor may be tested by certiorari or by any other proper action or proceedings brought directly for the purpose of vacating or setting aside the same at any time within three months after such assumed adoption, but not thereafter. ... No such assumed adoption nor any ordinance or proceeding for such adoption of the whole or any part of such general city charter law shall be in any manner called in question or held to be invalid in any action or proceeding except one brought directly for that purpose within the time hereinbefore limited therefor, unless the same shall have been duly vacated or set aside by a court of competent jurisdiction.” That act was passed just prior to the decision in State ex rel. South Milwaukee v. Fowle, 103 Wis. 388, 79 N. W. 419, and was probably suggested by the controversy between the two boards of education in that action. The manifest purpose of the act was to prevent such controversy as to the validity of such ordinance, unless brought within the time and [333] in the manner therein prescribed. There can he no question hut that the common council undertook and assumed to adopt the provisions of the general charter mentioned, nor that the city and its officers thereafter assumed in good faith to act under and to exercise the powers conferred hy the provisions' of law so assumed to he adopted. The special election ordered and held July 28, 1905, was based on the assumption in good faith that such ordinance had been legally adopted. Upon the same assumption the mayor appointed a board of education August 7, 1905, and the common council confirmed the same August 12, 1905, and the members of the board so appointed took the requisite oath of office. Upon the same assumption the common council adopted a resolution levying a special tax on the assessed valuation of all the property in the city October 2, 1905. Upon such assumption such new school board made demand upon the school district boards and the officers of all and each of said four districts, and especially on the defendants, for the delivery to such new board of all and singular the property belonging to said school districts, but the same was refused. This action was not commenced until October 23,1905, and the return of the defendants to the writ was made November 17, 1905. Besides, the act in question provides, in effect, that the validity of such ordinance should be tested only by certiorari or other proper action or proceeding brought directly for the purpose of vacating or setting aside the same, within the time prescribed, and should not be called in question in any action or proceeding “excejff one brought directly for that purpose within the time” prescribed. We must hold that by the act mentioned the defendants are barred from questioning the validity of such ordinance in this action. 3. The defendants contend and the trial court reached the conclusion that the special election held July 28, 1905, was null and void for want of the requisite notice of such election. In each of two of the districts there were two schoolhouses a [334] considerable distance apart, and the notice posted for tbe respective meetings simply recited that snob meeting would be held at the sehoolhouse in said district, without specifying in which sehoolhouse such meeting would he held. Nothing could be more uncertain and misleading as to the place where such meeting would be held. One of the two districts where the place of holding the meeting was so indefinitely stated was Joint School District No. 1, of which the defendants herein were officers. Besides, each and all of such notices failed to state that such proposed change of the school system would he considered at such meetings. The mere notice to the qualified electors that the meeting was to determine whether or not they wished to adopt and ratify the provisions of the general charter law relating to schools, which had been adopted by the city •council, did not give the requisite information as to the business to be transacted or which was attempted to be transacted. We must hold that such notices were itísufficient to authorize such election and change of school system. As to what electors are qualified to vote at such election there is a sufficient statement in sec. 925 — 113, Stats. (1898), .as amended by ch. 287, Laws of 1899. Counsel contend that women had no right to vote at such election, and cite Brown v. Phillips, 71 Wis. 239, 36 N. W. 242, and Gilkey v. McKinley, 75 Wis. 543, 44 N. W. 762, but fail to cite Hall v. Madison, 128 Wis. 132, 107 N. W. 31. But the trial court did not pass upon the question and we do not. By the Goiurt. — The judgment of the circuit court is affirmed. Timlin, J., took no part.