State ex rel. Hathaway v. Mirlach

Siebecker, C. J. Did the circuit court err in quashing the writ of mandamus? The petition alleges that the re-lators are the local board of industrial education for the city of Beaver Dam and that this board, under the provisions of secs. 41.13 to 41.21, Stats., at a regular meeting determined what amount the vocational school of the city of Beaver Dam required for the fiscal school year of 1920-1921 to support and maintain it. The board reported to the common council of the city that the sum of $14,361.66 would be required for this purpose and for the purchase of necessary additions to school sites, building operations, fixtures, and supplies. They therefore requested the common council [14] to levy a tax of 1.5 mills to raise this fund for such uses for the fiscal year specified in their report and requisition. It also appears that the common council levied a tax to raise the sum of $5,724 for these purposes, which could be applied iri addition to other funds provided for by law and placed at the disposition of the city. It is alleged that such lev}'- is much less than the amount that would have been realized had the city council levied the 1.5 mills tax on the assessed valuation of the city property for taxing purposes. It is also alleged that the sum thus raised by a tax levy, together with other funds provided by law and placed at the disposal of the city for the same purpose, is wholly insufficient for the support and maintenance and necessary equipment for such school for the current fiscal year. The plaintiffs assert that their requisition and demand that the city council levy a tax on the city property to provide the amount they reported for such school purposes was wrongfully refused by the city council. The issues thus raised by the parties require an interpretation of sub. (1) and (2), sec. 41.16, Stats. Sub. (1) provides that the local board of such school “shall report to the common council, ... at or before the first day of September in each year, the amount of money required for the next fiscal year for support of all the school's established or to be established under secs. 41.13 to 41.21 . . . and for the purchase of necessary additions to school sites, building operations, fixtures and supplies.” Sub. (2) provides that there shall be levied “. . . a tax upon all the taxable property” of any such city in the manner and at the time other taxes are collected, “which together with the other funds provided by law and placed at the disposal of said city” for the same purpose “shall be equal to the amount of money so required by said local board of industrial education” for the purposes of establishing, maintaining, and operating the schools provided for by the statutes. It is made the duty of such school board to ascertain before September 1st of each year the amount of money so required [15] for the ensuing school year. The terms of the statute do not expressly provide that such report shall contain anything besides the amount of money required to carry on the school; nor is there anything in the statute which by necessary implication demands that the board shall specify any other items in such report. The duties of the school board are therefore discharged in this respect when it makes this report to the common council. The statutes, sec. 41.13 to 41.21, creating the state board of vocational education, the local board of industrial education for the purposes of establishing and maintaining vocational schools for instruction in trades and industries, commerce and household arts, and imposing the burden on cities, villages, and towns to provide the necessary revenue to carry them on, are all expressed in positive terms requiring that such schools be established and maintained as prescribed. The act expresses a manifest legislative intent that municipalities shall by taxation provide the funds needed in addition to the amount otherwise provided by law to carry out the purposes of the act, and the state and local boards are given the power and authority to establish, maintain, and operate the schools. The authority so conferred necessarily implies that these governing boards are vested with the power to determine what amount should be contributed for such purpose by the local taxpayers within the legislative limitation of 1.5 mills. It is claimed by the respondents that the local board failed to report and specify to the city council the amounts available for such school purposes provided by law and placed at their disposal for the fiscal year covered by their report from the following sources, namely, moneys derived from (1) state aid; (2) sale of products in manual training and domestic science departments; (3) tuition fees; and (4) federal aid. There is no direction in the statute that the local boards shall include a specification of these items in their report. The language of the statute is that the local board “shall report to the common council . . . the amount [16] of money required for the next fiscal year” for such school purposes. The petition shows that the board did this and thus fully complied with their duty under the statute. Obviously the legislature left it to the common council to ascertain what funds, other than those to be raised by taxation, are available under the law for this purpose for any fiscal year, and when this has been ascertained by the city council they are required to raise by taxation the additional fund required to make up the amount the local board has reported to the council as requisite for this purpose. From this it follows that the common council of the defendant city was not required to levy a 1.5 mills tax for such purpose as requested in the report of the petitioners, but that the city council was required to levy a tax to raise an amount which, when added to the funds otherwise available for-such purposes, would equal the requirements fixed by the board, namely, the sum of $14,361.66. The facts alleged in the petition are sufficient to show that the common council did not comply with the statutes in this respect and that it states a good cause of action, and that a writ commanding the officers of the defendant city to perform their duty in levying a tax as required by sub. (2), sec. 41.16, Stats., should have been issued. Obviously the tax roll for the year 1920 has been in the hands of the city treasurer for collection of the taxes for that year, and no additional tax can now be put on that roll. At the time the circuit court quashed the writ in this case such relief was available. Under such circumstances, this court on appeal obtained jurisdiction to determine all the questions involved in the litigation, though the peremptory writ of mandamus as prayed for is of no avail at this time. The relators are entitled to a reversal of the order appealed from and to recover their costs and nominal damages. State ex rel. Runge v. Anderson, 100 Wis. 523, 76 N. W. 482. By the Court. — The order appealed from is reversed.