Joint Free High School District v. Town of Green Grove, 77 Wis. 532

Joint Free High School District v. Town of Green Grove

77 Wis. 532 | Wis. | 1890

Cassoday, J.

It is claimed on the part of the defendant that when, in April, 1887, the township of Green Grove was created and organized out of the western portion of the territory which had previously constituted the township of Colby, such territory as was thereupon comprised in such new town ceased to be a portion of such joint free high school district, and hence no longer was obliged to contribute to the support of such high school.

The statute provides for the formation of joint common school districts. Sec. 415, R. S. It also provides that every school district organized pursuant to the chapter on common schools shall be a body corporate and possess the usual powers of a corporation for public purposes. Sec. 417, R. S. Those sections both existed long prior to the statute authorizing the establishment of free high schools, which was not enacted until 1875. Sec. 490, S. & B. Ann. Stats. Such sections, therefore, are to be construed as a continuation of such laws, and not as new enactments. Sec. 4985, R. S.; Thompson v. Milwaukee, 69 Wis. 494; State ex rel. Bergenthal v. Bergenthal, 72 Wis. 319. The statute for the alteration of joint common school districts by boards of two towns was not enacted until 1882. Sec. 419a, S. & B. Ann. Stats. The statute relating to free high schools provides that “two or more adjoining towns may unite in establish vug cmct maintaining any such high school.” Sec. 491, Id. The statutes also provide how, and the conditions upon which, aid may be obtained from the state. Secs. 491a, 4915, 494-496, Id.

In an opinion of the learned state superintendent upon the question here involved, he refers to the fact that, while there is no express provision in the statutes for the discontinuance of a free high school, yet there are three or four indirect ways by which, under the sections of the statute cited, such school may cease to be a free high school in any such sense as to entitle it to participate in the state aid. He then maintains that such joint free high school is not, *536under the statutes, a body corporate, but can only be maintained, if at all, through the agencies of the towns composing the same. He further maintains that upon the creation of the defendant town it ceased to be any part of said joint free high school district. It is certain that the statute does not expressly declare such joint free high school district to be a body corporate. If it be so at all, it is merely by implication or construction. The statute provides that the officers of each such district shall be a director, treasurer, and clerk, to be elected at the annual town meeting or charter election, but is silent as to the manner of proceeding in case of such election, or whether the election is to be by one or more towns or the territory comprising such joint free high school district. Sec. 492, S. & R. Ann. Stats. The statute merely provides that the high school board and the officers thereof shall conduct the affairs of such high school district on the same general plan provided for school districts, and have and possess, with respect to such high school district, all the powers, including such as may be conferred by vote of a district meeting, and be charged with all the duties conferred and imposed on the district officers and district board of a school district, applicable to such high school district. Sec. 493, S. & B. Ann. Stats. We agree with the state superintendent that our free high school system “ is crude, deficient, and complicated, and greatly needs revision;” and we have referred to the several provisions of the statutes for the very purpose of calling the attention of the coming legislature to. the matter. The view we have taken of this case makes it unnecessary that we should here determine whether the plaintiff is a body corporate with the right to sue or not; nor whether in case it be such body corporate the town of Green Grove is included in it. What is here said, therefore, will be upon the assumption that the plaintiff is a body corporate, and that the defendant town constitutes a part of it.

This is an action at law, pure and simple. The complaint *537demands a money judgment and nothing more. It is not based upon any contract, express or implied, nor upon any tort. The whole theory of the complaint is that certain officers, and particularly the town clerk of the defendant town, had neglected and refused to perform their offioial duty in the matter of levying and collecting the defendant’s proportionate share of the taxes for the maintenance and support of the high school in question for the several years named. It is purely a question of law, upon the facts stated, whether such officer or officers were charged with such official duty, and hence required to perform the same. If they were not, then the plaintiff is wholly without remedy. If they were, then mandamus is the only effectual remedy to enforce the performance of such official duty. School Dist. No. 2 v. School Dist. Wo. 1, 3 Wis. 333; State ex rel. Ordway v. Smith, 11 Wis. 65; State ex rel. Van Vliet v. Wilson, 17 Wis. 687; Labette Co. Comm’rs v. Moulton, 112 U. S. 217; Harshman v. Knox Co. 122 U. S. 306; Comm’rs v. Loague, 129 U. S. 493. In other words, the facts alleged do not present a case calling for damages, but one, if at all, calling for the enforcement of an official duty. The learned counsel for the plaintiff contends that, if the plaintiff has the right to the extraordinary remedy by mandamus, then it necessarily has the milder remedy by this action at law; but, as indicated, the facts alleged are not such as authorize a money judgment. On the contrary, and upon the assumption indicated, they call for a judgment compelling the officers of the town- to perform their official duty. Anything short of that would be no remedy.

By the Court.-— The judgment of the circuit court is affirmed.