Iverson v. Union Free High School District

Owen, J. It is apparent from the allegations of the complaint that the acts of the district board at the district meeting, of which complaint is made, are the result of a school district row, and that the closing of the school, the change of the school site, and the cessation of building operations are pure spitework and proceed from motives of revenge rather than the promotion of the public welfare. But however ill-advised or destructive of public interest the conduct here complained of may be, the question whether the courts can interfere depends upon certain preliminary considerations which will immediately be taken up. The principal misconduct involved is that of the electors of the school district. They voted to change the schoolhouse site, to suspend school during the year 1924-1925, and stop the work of constructing the new schoolhouse. Even though they did not initiate all of these policies, they indorsed and approved every one of them at the special meeting held July 28, 1924. If these acts were legislative in character and within the scope of the powers of the school district or the electors thereof, then a court will not inquire into the motives of the legislative body in taking action thereon. Even though their motives were corrupt, or for the purposes of spite or revenge, if the action taken was within the range of their legal discretion, the result of their action is immune from judicial interference. State ex rel. Rose v. Superior Court, 105 Wis. 651, 81 N. W. 1046. — 353 — The school district is not a municipal corporation. It is very grudgingly accorded the rank of a gwim-municipal corporation. 1 McQuillin, Mun. Corp. § 113; 24 Ruling-Case Law, 564. It is but the agent of the state for the sole purpose of administering the state’s system of public education and has only such powers as are conferred expressly or by necessary implication. 24 Ruling Case Law, 565. If a school district have a legislative body, that body is no doubt the electorate, and the powers conferred upon them are exercised at the annual or special school district meetings. Even though a given body may be classed as a legislative body, it does not follow that all the powers exercised by it are legislative in character. The powers conferred and which may be exercised at school district meetings are defined in sec. 40.56 of the Statutes. Among those powers we find these: “(3) To vote such tax as the meeting shall deem sufficient to purchase or lease a suitable site for the free high school; to build, hire or purchase a schoolhouse; to keep in repair and furnish the same with necessary furniture, ventilating arid heating apparatus, and to provide for the equipment and maintenance of the free high school. “(4) To authorize and direct the sale of any free high schoolhouse site, or other property belonging to the free high school district when the same shall no longer be needed for use in the district.” “(8) To determine the length of time a free high school shall be taught in such free high school district during the ensuing year, which time shall not be less than nine months.” In order to bring the acts here complained of within the immunity of the rule enunciated in State ex rel. Rose v. Superior Court, 105 Wis. 651, 81 N. W. 1046, it must appear that the electors when assembled in their district meetings not only constitute a legislative body, but that the purchase or lease of a suitable site for a high school building or a schoolhouse, and prescribing the length of time when — 354 — school shall be maintained during the following year, constitute legislative acts and an exercise of legislative power. A legislative act has been defined generally to be an act of the legislative department of the government by which the law to be applied in future cases under particular states of fact is established in the form of a statute, ordinance, resolution, or other written form. Smith v. Strother, 68 Cal. 194, 8 Pac. 852. Legislative power is defined generally to be “authority exercised by that department of government which is charged with the enactment of laws, as distinguished from the executive and judicial functions.” 2 Bouvier, Law Diet. (Rawle’s 3d Rev.) 1915. While these general definitions may not be easy of application in specific instances for the purpose of determining whether the action of public bodies is legislative in character, we have no hesitancy in saying that the designation of a schoolhouse site, or providing for the building of a schoolhouse, is ministerial -rather than legislative in character, and -that this power cannot be exercised to gratify whim, caprice, or passion, but must be exercised in good faith and in the public interest. The laying out of a highway more nearly approximates the exercise of legislative power than does the selection of a schoolhouse site, yet this court has not hesitated to annul the action of a town board in laying out a highway where the board was induced to take such action by considerations other than that of the public welfare. State ex rel. Dosch v. Ryan, 127 Wis. 599, 106 N. W. 1093. The powers conferred upon school districts, whether to be exercised by the electors in their district meetings or by the school board, are powers germane to and appropriate for the promotion of the cause of education, and they must be used and exercised for the purpose of accomplishing rather than defeating that object. Of course, in the exercise of this power some measure of discretion on the part of those in whom it is vested is permissible, but that discretion is a reasonable one and cannot be so exercised as to utterly — 355 — defeat the purposes for which school districts are created. No other purpose can be ascribed to the various actions of this school district which are made the subject of the complaint in this case. A school district site was selected and paid for, and after about $15,000 of the funds of the district had been invested in a schoolhouse, and while the work of construction was in progress, the school district ordered a suspension of the work of construction and voted to buy a new site — all this within a period of three or four months after the site was purchased. The allegations of the complaint fully negative any thought, that this was done for the purpose of .promoting the cause of education in that community. If the construction of the building be not permitted to proceed, it will result in a most shocking waste of public moneys, to the great injury of the taxpayers of the district. If such caprice and spitework be approved, then, when the vicissitudes of politics shall place the present minority in control of the district meeting, the site may again be changed, and so on ad libitum, resulting in a pitiful squandering of public funds and the crucifixion of the cause of education. Under these circumstances the decisions of this court furnish ample authority for the interference of a court of equity, at the suit of taxpayers, to prevent a most striking abuse of power, to protect the cause of education, and to prevent the waste of public funds. Land, L. & L. Co. v. McIntyre, 100 Wis. 245, 75 N. W. 964; Estate of Cole, 102 Wis. 1, 78 N. W. 402; Webster v. Douglas Co. 102 Wis. 181, 77 N. W. 885, 78 N. W. 451; Northern T. Co. v. Snyder, 113 Wis. 516, 89 N. W. 460; Dorner v. School Dist. 137 Wis. 147, 118 N. W. 353; Income Tax Cases, 148 Wis. 456, 134 N. W. 673, 135 N. W. 164; Warden v. Hart, 162 Wis. 495, 156 N. W. 466. The action of the school district in voting that no school should be held during the year 1924-1925 was equally unwarranted. The statutes plainly contemplate that at least — 356 — nine months’ school shall be maintained every year in every union free high school district. Sec. 40.56 provides, among the powers of the school meeting, the power “To determine the length of time a free high school shall be taught in such-free high school district during the ensuing year, which time shall not be less than nine months.” Sub. (4), sec. 40.52, provides in substance that if the electors shall'not vote a tax sufficient to> maintain a free high school for the term of at least nine months during the current year, the free high school'board must, on or before the Wednesday next following said third Monday of November, determine the sum necessary to be raised to so maintain such free high school, and the clerk shall forthwith certify to the proper town, city, or village clerks the amount so fixed. Upon receipt of this certificate the town, village, and city clerks shall assess the same as other taxes are assessed. It will be seen that the legislature has left no discretion on the part of union free high school districts so far as the maintenance of school therein for a period of nine months each year is concerned. The district may provide for the maintenance of school for a longer period, but school must be maintained for at least nine months. If the electors fail to vote the necessary tax, it is made the imperative duty of the district board to determine the sum necessary for that purpose, certify the same to the proper town, village, or city clerks, and such town, village, or city clerks must assess the same as other taxes are assessed. It goes without saying that if either the school district board or the respective town, village, or city clerks fail in the performance of these duties, mandamus may issue to compel their performance. It does not appear from the allegations of the complaint that there was any insuperable difficulty of a physical nature to prevent the maintenance of school during the year 1924-1925, and, so far as the allegations of the complaint are concerned, it appears that the action of the school district in this respect was wholly unwarranted and unjustified. — 357 — We do not see any justification for the presence of the fifty taxpayers interpleaded as defendants. • But since a general demurrer to a complaint will be overruled if a cause of action is stated as to some, though not all, of the defendants joining in such demurrer (St. Croix T. Co. v. Joseph, 142 Wis. 55, 124 N. W. 1049), we have already said enough to indicate that the order overruling the demurrer should be affirmed. The complaint states facts sufficient to constitute a cause of action and grounds for equitable relief. Although one ground of demurrer is that “it appears from said complaint that several causes of action are improperly united,” this ground is not seriously urged here. Plainly the complaint states but one cause of action, and that for equitable relief from the unlawful acts of the school district, — so closely united and connected and all contributing to the accomplishment of a common purpose as to constitute but a single cause of action. But if each of the unlawful acts complained of should constitute separate and distinct causes of action, they are properly united in the complaint. Another ground of demurrer is that “it appears from the face of the complaint that there are other actions pending in the above named court, commenced prior to the commencement of this action, in which the validity of the contracts named in this complaint are at issue . ... and are undecided and undetermined.” The statute (sec. 2658) provides as a ground for demurrer that “there is another action pending between the same parties for the same cause.” The form of the demurrer on this ground falls far short of the statutory requirement. It does not appear from the face of the complaint that “there is another action pending between the same parties for the same cause,” neither does the demurrer specify any such thirig. It simply specifies that “there are other actions pending in the above named court in which the validity of the contracts named in this complaint are at issue.” This is far from saying that there — 358 — is another action pending between the same parties for the same cause and does not sufficiently respond to the statutory requirement. While it is not necessary for us to pass upon the validity of the contract made by the school district with the defendant Carl Ahhnan for the construction and erection of the schoolhouse, that question was briefed and argued, and with the thought that an expression of our views upon that question at this time may contribute either to' an amicable compromise and adjustment of all matters in controversy between the parties, or to a speedy disposition of all such matters by the court, we will content ourselves with saying that we discover nothing illegal or unlawful about this contract. By the Court. — Order affirmed.