87 Wis. 533 | Wis. | 1894
The following opinion was filed March 16, 1894:
As will be readily seen, there is no provision of sec. 2, ch. 384, Laws of 1885, which requires the new school district which is organized from territory detached from an old school district to pay to the old school district anything on account of school-houses or school-house sites or any real estate whatever belonging to the old school district which shall be situated in the new district. It is the new district which is to receive from the old one, not the old district from the new one. The new district is liable to the old district “ for its just share of the liabilities and indebtedness,” and it is the new district which is to receive its “ just share of credits ” from the old district, for so the legislature has declared it.
School Directors of Pelican v. School Directors of Rock Falls, 81 Wis. 428, and School Directors of Eagle River v. School Dist. No. 1, 81 Wis. 543, were both actions in the interest of new districts, or of the territory detached from the old district, against the old districts, and so were within the words of the statute; -while the statute has no word applicable to the present case. It seems to be a casus omis-sus. It is left to the disposal of the common law, and the common law, like the statute, is silent. It leaves the property where it is found, and raises no liability to pay. See cases cited by Mr. Justice Pinney in School Directors of
By the Court.— The order of the circuit court is affirmed, and the cause is remanded for further proceedings according to law.
Upon a motion for a rehearing, counsel for the appellant contended that the charter of the city (Laws of 1887, ch. 127, subch. 16, sec. 16) vested in it only the title to lands owned and held by the town of Ashland, and not the title to lands owned by the plaintiff. The school board is a body corporate, separate, distinct from, and independent of, the town; and has title to all the school property. R. S. sec. 519 et seq.; Miller v. Jacobs, 70 Wis. 122. If ch. 334, Laws of 1885, gives no right of compensation to the old district for property owned by it situated within the new, then neither does it make any change in the common-law rule of ownership; and the title to the school property, so far as the old district is-concerned, remains as though said act had never been passed. If the city charter attempted to divest the plaintiff of its property without its assent .and without compensation, it would be unconstitutional. Milwaukee v. Milwaukee, 12 Wis. 93.
The motion was denied May 1, 1894.