School Districts v. Edwards, 46 Wis. 150

School Districts v. Edwards

46 Wis. 150 | Wis. | 1879

LyoN, J.

The action is to recover money in the hands of the appellants, which, it is alleged, belongs jointly to the school districts, parties to this action. The demurrer is general; hence we have no question on this appeal of defect of parties, or misjoinder of causes of action. If the facts stated in the complaint show that the money belongs to those districts, the demurrer was properly overruled. The objections to the sufficiency of the complaint will be briefly noticed in their order.

1. The act of 1865 (eh. 537, sec. 17) provides that in a certain contingency drainage money in the town treasury “ may be applied to the support of common schools, under the direction of the board of supervisors.” The learned counsel for the defendants argue, that money so applied does not belong to the school district for the benefit of which it is applied, and does not go into the district treasury, but must be applied, that is, expended, directly by the supervisors, without the intervention of the school district or its officers.

We think this is an incorrect construction of the statute. The general law of the state prescribes the processes, through the agency of school districts and their officers, for organizing, maintaining and conducting the common schools. Within legal limitations, the control of the district board over the district school must necessarily be exclusive. There is not room, for two jurisdictions acting independently of each other. If *157tbe construction of tbe statute contended for be adopted, tbe board of supervisors wbicb applies drainage money to tbe support of a district school, may discharge a teacher employed by tbe district board and employ another, and may control tbe management and economy of tbe school while expending tbe money. Of course, tbe legislature never intended that result, but manifestly did intend that tbe money should be paid into tbe district treasury and expended under tbe direction of the district board, as other funds belonging to the district are paid in and expended. The true meaning of the statute doubtless is, that the money shall be applied to the support of common schools by and through the usual authorized agencies, if, on the happening of the contingency therein mentioned, the board of supervisors shall so direct.

In this case the complaint shows a regular determination that the contingency of the statute has happened; and it shows further that the proper board of supervisors has applied the money to the support of common schools by appropriating it to the school districts of the town. "We cannot doubt that the money belongs to the school districts to which it was thus appropriated, and that those districts may recover the same of any person who may have it in kis,hands.

2. We think there is no force in the objection that the appropriation was not lawfully made, because, when made, the money was not in fact in the town treasury. The money was taken from the treasury by the appellants (one of them being then a supervisor) without lawful authority, and was never returned. It was a most flagrant breach of trust on the part of the supervisors to loan or borrow the public funds, and neither they nor any other person in pari delicto with .them can be heard to say that the money was not in the treasury when appropriated, if it becomes necessary for any person justly entitled to it to allege that it was there. If not then in the treasury, it ought to have been, and probably would have been there but for a gross violation of official duty to which the appellants *158were parties. The board of supervisors making the appropriation might lawfully assume that the money would be at once replaced by the appellants where it belonged, and treat it as money actually in the treasury. Hohl v. The Town of Westford, 33 Wis., 323. Were the objection available under any state of facts, it is not available to these appellants under the facts stated in the complaint.

3. The fact that the sevéral school districts are entitled to the money in unascertained and probably in unequal proportions, is no impediment to this action. That is a matter between the districts, with which the appellants have no concern. It is sufficient for the purpose of maintaining the action, that they are jointly entitled to the money claimed. It may be remarked, however, that no good reason is perceived why the court may not in this action (if there is a recovery) direct the money to be paid into court, and by reference or otherwise ascertain the due proportion of each district, and distribute the money accordingly. The last official enumeration of children in the several original districts, preceding the appropriation, will probably furnish a sufficient basis for ascertaining the proportion of each; or the share of each district may be ascertained by stipulation between them.

The foregoing views dispose of all the objections to the sufficiency of the complaint necessary to be noticed, and bring us to the conclusion that the complaint states a cause of action in favor of the school districts against the appellants.

RyaN, C. J.

I cannot doubt that the rights of action of the several school districts are several, not joint; or that, had the demurrer assigned the improper joinder of several causes of action, it should have been sustained. But the demurrer assigns the single ground that the complaint does not state facts sufficient to constitute a cause of action. This is apparently a waiver of the true ground of objection.

Had the defendant school district demurred on the ground *159tbat the complaint does not disclose a good cause of action against it, it is difficult to perceive why it should not have been sustained. I do not understand why it was made a defendant.

And I doubt very much whether in this action the court below can do anything more than render judgment for the aggregate claims of the plaintiff school districts. The action is at law, not in equity.

By the Court. — Order affirmed.