159 Wis. 39 | Wis. | 1914
Lead Opinion
It is contended that the plaintiff has attempted to join an individual cause of action in his favor for damages with an action, which he prosecutes as taxpayer in favor of himself and all others similarly situated, for an injunction to restrain defendants from using the school houses to' conduct the alleged private businesses. The allegations of the complaint are that the plaintiff has been damaged in his private business, for which he seeks to be compensated. Can such a cause of action be joined with the equitable relief sought by the plaintiff as representative of a class, namely, the taxpayers of the city of Milwaukee? Sec. 2647, Stats., prescribes what causes of action may be united, in the complaint. “But the causes of action so united must all belong to one of these classes and must affect all the parties to the action. ...” The complaint before us seeks to unite an action in equity, prosecuted by the plaintiff in his representative capacity of citizen and taxpayer of the city of Milwaukee in behalf of himself and all others similarly situated, and an action in his individual capacity to recover damages which he personally claims to have suffered through the acts of the defendants. No one except the plaintiff has any interest in' his
The trial court held that the complaint' does not allege sufficient facts to constitute a cause of action on the ground that the board of school directors of the city of Milwaukee is au- ■ thorized to permit defendants such use of the school buildings as is set forth in the complaint. The court based its decision on the provisions of ch. 459, Laws of 1907, and sec. 435e, Stats. 1913.
The buildings erected for the public schools are to be demoted to the purposes contemplated by the statutes of maintaining the public schools in providing popular instruction. The legislature has by law made provision to promote the cause of popular education by the organization of local school authorities and conferred on them the power to raise by general taxation the money required to acquire school-house sites and for building school houses, and imposed upon school boards the duties of maintaining the required schools and to devote these school properties to school purposes and manage them as prescribed by law. The allegations of the complaint are in effect' that the school directors of the city of Milwaukee granted the defendants permission to use the school buildings of the city for the purpose of conducting private school-book and supply businesses for their personal profit. Do the statutes authorize the use of the public school buildings 'for conducting such private school businesses for personal profit?
The trial court erred in sustaining the demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action. The complaint states a good cause of action for relief to restrain the defendants from using the school buildings to conduct their private businesses for profit as alleged in the complaint. The plaintiff as a taxpayer and resident of the city is a proper party to prosecute the action for himself and all others similarly situated.
Since the complaint embraces a cause of action for recovery of plaintiff’s personal damages, it follows that the com
By the Gourt. — The order appealed from is affirmed.
Dissenting Opinion
(dissenting). I agree that a cause of action for a wrong to a single individual cannot be joined with an action to redress or prevent a wrong done to a class, but in my judgment there is no actionable wrong of either kind stated in the complaint. Taking the alleged taxpayer’s action first, it appears by the complaint that the principals of the public schools, with the assistance of some students, are selling to pupils necessary school books and utensils for a profit above the cost, and are using space in the school buildings therefor; that the facts have been investigated by the school directors, who have unanimously declared that it is for the best interests of the schools, pupils, and parents in the way of convenience and economy that the practice be continued, and that the so-called stores are not run for profit.
Inasmuch as the -allegation of the complaint is positive that the so-called stores are operated for a profit, it will undoubtedly be necessary to consider the case on that basis notwithstanding the statement of the school board that they are not conducted for profit. It may well be, however,- — in fact it seenis very probable, — that the so-called profit consists of a margin above cost which goes into a fund used to beautify or provide equipment for the school buildings, as was suggested on the argument. The complaint significantly omits to charge that the profit goes to the personal enrichment of defendants.
The complaint is barren of any allegation either that public money or property is injured or wasted by the operation of the so-called stores, nor does it allege that the interests of the educational system are in any way injuriously affected; there is therefore no wrong to the taxpayers alleged. Such being the case, it follows logically that there is no basis for an action for injury to the business of a private individual. Stone v. Oconomowoc, 71 Wis. 155, 36 N. W. 829.