Stroud v. City of Stevens Point, 37 Wis. 367

37 Wis. 367 | Wis. | 1875

Ryan, C. J.

We have looked into the charter of the city, the respondent, ch. 267 of 1858; and, as far as we can judge, upon its passage, common schools in the city remained under the town system. The connection between the town and that part of its territory constituting the city, is dissolved for all town purposes (charter, ch. 9, sec. 20); but the authority of the town superintendent of schools within the city is expressly continued (id., sec. 19). The city indeed takes power to levy school taxes (id., ch. 7, sec. 8); apparently because the town lost the power.' Beyond these provisions, we find nothing in the charter relating to schools. If there be anything further, or if there be other legislation on the subject, before the act of 1873, we have not been referred to it.

And so it appears that school district No. 1, comprising a part of tbe city, remained in operation, outside of tbe city charter, under tbe general school system, until tbe act of 1873 was passed. We regret that the case does not give us clearer light on tbe subject; but we can see our way to no other conclusion.

Cb. 167 of 1873 amends the city charter by providing that the board then having control of schools in the city should cease to act, and creating a new board of education for the city, as part of the machinery of the city government, in which the act vests sole control, supervision and management of schools in the city, under the general supervision of the county superintendent, and to which the old board shall surrender all effects belonging to school district No. 1.

It was argued here, and we are told that it was so held in the court below, that school district No. 1 was not abolished by this legislation, but still continues to exist. We cannot think so.

It should be borne in mind that school districts are not formally chartered corporations, but are to be regarded rather as quasi corporations, variable in organization and extent, and having corporate existence by force only of their public functions. School Dist. v. Macloon, 4 Wis., 79. In State v. Wolfrom, 25 Wis., 468, the new village charter included a part only of an existing school district, and therefore the court holds that the charter did not abolish the school district, dealing with it expressly as a question of legislative intention. The reasoning of that case, applied to this, goes to show a legislative intention to abolish district No. 1. And independently of authority we could very easily come to the conclusion that the corporate existence of a school district ceases with its functional existence. But, even in the case of chartered municipal corporations, the law seems to be well settled that such legislation as this would operate to extinguish the old corporation. “A corporation may be created in any place where there is not an existing corporation for municipal government, even where there has formerly been one, if it be now dissolved. But there cannot, at the same time, be two corporations in the same place, having the same or similar powers, privileges and jurisdiction.” Will-cock, 27, cited and approved in City of Patterson v. Society, etc., 4 Zab., 385. “ It has been contended that the old corporation was not dissolved, because some of the natural members were in existence; and that there cannot be two corporations, at one time, in the same place, with coextensive powers. I admit the latter part of the position to be true, namely, that there cannot be two such effective corporations in the same place; for, instead of good order, that would only be productive of anarchy. But I deny the former position; for I say, when the old corporation was reduced to such a state as to be .incapable of continuing its existence, and of doing any corporate act, it was extinct as a body corporate.” Ashhurst, J., in King v. Pasmore, 3 Term, 199.

Here, for all purposes, the city took the place of the old school district, was vested with all its property, powers and duties. And the lattér lost its corporate being with its functions. And we think that this was plainly the intention of the legislature; and that the declaration that the scbool district shall cease to act, is equivalent to a declaration that it shall cease to be.

It is therefore very certain that the appellant could not have Sued the school district which employed him. And his action is well brought against its successor. The city is, pro hac vice, the old school district enlarged, under a new name. And, as the appellant’s counsel contends, the new district abolished the old cum onere. School Dist. v. Macloon, supra; State v. Wolfrom, supra; Briggs v. School Dist., 21 Wis., 348; Collins v. R. R. Co., 14 id., 492.

This is understood to be the only point on which the nonsuit turned below, and it is the only ground on which it was supported in this court. We shall therefore set aside the nonsuit, without considering any other question or indicating any opinion on the measure of the appellant’s right of recovery.

By the Court — The judgment of the court below is reversed, and the cause remanded for a new trial.