21 Wis. 657 | Wis. | 1867
By the express provisions of the statute, the district board has the care and keeping of the school house and other property belonging to the district (section 48, chap. 155, Laws of 1868), and as incident to the proper discharge of this-duty must be deemed to have authority to bring a suit for arr injury to the school house. The general rule of law is stated by Ch. J. Spencer, in Overseers of Pittstown v. Overseers of Plattsburg, 18 Johns., 406-418, that when a public office is instituted by the legislature, an implied authority is conferred on the officer to bring all suits, as incident to.his office, which the proper and faithful discharge of the duties of his office require. Todd v. Birdsall, 1 Cowen, 260; Supervisor of Galloway v. Stimson, 4 Hill, 136; Commissioners of Highways &c. v. Peck, 5 id., 215; The Inhabitants of 4th School District in Rumford v. Wood, 13 Mass., 193. The doctrine of the cases in New York is strictly applicable to the point that the board had the authority to commence this suit. But it is said that our statute limits the power or right of the board to commence a suit for an injury done to the property of the district; and subd. 13, sec. 18, and sec. 34 of the above chapter are mainly relied on-in support of this view. By the former provision it is enacted, that the inhabitants qualified by law to vote at a school district meeting, when assembled at the first and each annual meeting of their district, shall have power, among other things, to give such direction and make such provision as may be deemed necessary in relation to the prosecution or defense of any action or proceeding in which the district may be a party or be interested. We do not think it was the intention of this provision to deprive the board of all right or authority to Bring a suit for a trespass upon the school house in the absence of any such direction by the voters of the district. The obvious intent of the entire section is, to define in a general manner the power of the electors at the annual meeting, and to prescribe the business that may then -be transacted. We do
The more important question raised in the case is, whether the district board, or the electors of the district even, can authorize the use of the school house for any purpose except for school purposes. And to that question we are of the opinion that a negative answer must be given. In order to maintain public schools and to promote the cause of popular education, the electors of a district are authorized to raise money by taxation to buy sites for school houses, and to erect, keep in repair and furnish suitable buildings thereon for the use of schools. To attain this important object, school houses are erected, and their use and occupation ought not to be diverted to other purposes. The statute has not given the board, nor the electors of the district, any authority to permit a school house to be used for meetings of the Sons of Temperance, or any thing of the kind. So the action of the electors of the district, at the special school meeting held on the 5th of December, 1865, in favor of the Sons of Temperance holding their sessions in the school house, which is relied on as a justification of the acts complained of, was wholly unauthorized, and furnished no defense to the action. This action of the electors in voting that the Sons of Temperance might have the use of the school house to hold their sessions in, was doubtless taken upon the notion that as the school house was the property of the district, the electors might permit it to be used for such purposes as they might think proper. But although the school house is the property of the district, it does not follow that the electors may divert it from its original use. There may be others besides the electors interested in the school building, and whose rights would be affected. Tax-paying
We are of the opinion that the judgment of the circuit court must be reversed, and that of the justice affirmed.
By the Court. — Ordered accordingly.