189 Wis. 648 | Wis. | 1926
The following opinion was filed February 9, 1926:
Sec. 40.16 of the Statutes provides- for the transportation of school children attending the district schools, under certain conditions, and for the payment of such transportation.
It also appears that during the month of December only two members of the district board were in office, the treasurer of the board having resigned. The clerk and the director of the board considered these protests and cautioned Wallace to desist from deviating from the contract route, and, failing to obtain the desired results, they agreed informally to discharge him and to let the contract to another.' A representative of the state superintendent’s office was consulted by two of the members of the board, and he advised the holding of another meeting for the purpose of taking formal action aiming at the discharge of Wallace and the selection of a new man to take his place. This meeting was called in January, 1925, and all of the members of the board, including the newly appointed treasurer (the defendant herein), were present.
It must also be stated here that the representative of the state school superintendent expressed his doubt as to whether Wallace could be legally discharged and as to whether the
A contract was then entered into with the plaintiff, and he continued to transport children along” the designated route until the end of the school year, and during such period school orders were periodically issued to him, which he presented to the defendant as school treasurer for payment, but which the latter refused to recognize or pay. To enforce the payment of these orders the plaintiff brought the mandamus action herein referred to.
Wallace, claiming that he had not violated the provisions of his contract, secured an old bus belonging to the district and continued to transport some of the children in the same manner as he had done earlier in the school year. Both the plaintiff and Wallace, it seems, make the claim that they are entitled to compensation. The defendant in his answer prayed that Wallace might be interpleaded so that the rights of all parties interested could be determined in one action. 'The school district, which is vitally interested in the matter, and which is called upon to pay doubly, was not made a party.
When the electors at the school district meeting in July, 1924, pursuant to the provisions of sec. 40.16 of the Statutes, authorized the contract providing for the transportation of school children, they had in mind one contract, and not two contracts; they had in mind the payment of one bill for transportation, and not two bills. While it is true that the school board, having entered into' the contract, could, for proper cause, discharge the contractee and thereafter enter into a new contract, thus entailing but one bill for
The school district is confronted with a double liability, and it is not before the court so that its rights may be determined; nor was Wallace interpleaded. Under such circumstances, Can it be said that the remedy by mandamus is the proper one in this case? It would appear to us that an action on contract to recover the amount agreed upon, against the school district, would have constituted the proper proceeding, and in such action both the plaintiff and Wallace should be brought in, so that the rights of all parties would be before the court to be determined. “Mandamus is an extraordinary legal remedy and must be based upon a clear and specific legal right which is free from substantial doubt, and the relief prayed for must be just, and untainted by fraud or collusion.” 26 Cyc. 306. On the same page of the authority cited it is also said: “Mandamus will not lie to compel payment of an unliquidated claim until the validity of the claim and the amount due shall have been definitely ascertained.”
The law as thus stated meets with our approval, and we therefore hold that mandamus is not the proper legal remedy in this case.
By the Court. — The judgment of the lower court is reversed, and the cause is remanded with directions to dismiss the proceeding.
A motion for a rehearing was denied, with $25 costs, on May 11, 1926.