City of Columbus v. Town of Fountain Prairie

• Decision Date: 18 February 1908
• Citation: 115 N.W. 111,134 Wis. 593
• Parties: CITY OF COLUMBUS v. TOWN OF FOUNTAIN PRAIRIE.
• Court: Wisconsin Supreme Court

134 Wis. 593

115 N.W. 111

CITY OF COLUMBUS

v.TOWN OF FOUNTAIN PRAIRIE.

Supreme Court of Wisconsin.

Feb. 18, 1908.

Appeal from Circuit Court, Columbia County; Chester A. Fowler, Judge.

Action by the city of Columbus against the town of Fountain Prairie. From an order overruling a demurrer to the complaint, defendant appeals. Reversed and remanded, with directions.

Appeal from an order overruling a demurrer to the complaint and permitting “the board of education of the city of Columbus” to be joined as a party plaintiff.

Among other references upon the part of the appellant were the following: Const. Wis. art. 10, § 3; sections 417, 474, 490, 492, 493, 495, St. 1898; Free High School Dist. v. Green, 77 Wis. 532, 46 N. W. 895;State ex rel. F. H. S. D. v. Lamont, 86 Wis. 566, 57 N. W. 369; chapter 188, p. 234, Laws 1901; chapter 329, p. 525, Laws 1903; State ex rel. McCurdy v. Tappan, 29 Wis. 672, 9 Am. Rep. 622;Hasbrouck v. Milwaukee, 13 Wis. 37, 80 Am. Dec. 718;State ex rel. Board, etc., v. Haben, 22 Wis. 660; Const. Wis. art. 8, § 1; sections 2610, 2611, St. 1898; Mash v. Bloom, 126 Wis. 385, 105 N. W. 831;State ex rel. City v. Ludwig, 106 Wis. 226, 82 N. W. 158;Linden L. Co. v. Milwaukee E. R. & L. Co., 107 Wis. 493, 83 N. W. 851; 15 Encyc. Pl. & Pr. 527; 1 Chitty on Pl. p. 11; 5 Ency. Pl. & Pr. 731; chapter 132, p. 324, Laws 1876; section 490, c. 354, p. 864, Laws 1897; sections 7, 14, subc. 12, Charter of Columbus, Laws 1874, pp. 107, 110, c. 57; State ex rel. Comstock v. Joint School Districts, 65 Wis. 631, 27 N. W. 829, 56 Am. Rep. 653.

Among other references upon the part of the respondent were the following: City Charter, 2 Laws 1883, pp. 628-633, c. 57, §§ 1, 2, 7, 8, 9, 13, 14; Laws 1874, p. 67, c. 57, subc. 4, § 6; Id. p. 78, c. 57, subc. 6, § 2; Walworth County v. Whitewater, 17 Wis. 193;Janesville v. Markoe, 18 Wis. 351;State ex rel. De Forest v. Hobe, 124 Wis. 8, 102 N. W. 350; 20 Ency. Law, p. 1138; Mead v. Bagnall, 15 Wis. 156;State ex rel. Gates v. Com'rs, 106 Wis. 584, 82 N. W. 549;Gross v. Heckert, 120 Wis. 314, 97 N. W. 952;Meyer v. Barth, 97 Wis. 352, 72 N. W. 748, 65 Am. St. Rep. 124; 19 Encyc. Law, 793; Ackley v. Vilas, 79 Wis. 157, 48 N. W. 257;Outagamie Co. v. Greenville, 77 Wis. 165, 45 N. W. 1090;State ex rel. Worcester v. Nelson et al., 105 Wis. 111, 80 N. W. 1105;Fox Lake v. Village of Fox Lake, 62 Wis. 486, 22 N. W. 584;United States v. Windom, 137 U. S. 636, 11 Sup. Ct. 197, 34 L. Ed. 811;State ex rel. Buchanan v. Kellogg, 95 Wis. 672, 70 N. W. 300;State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. 587;State ex rel. Superior v. Hunter, 111 Wis. 582, 87 N. W. 485;La Crosse v. Melrose, 22 Wis. 459;Town of Scott v. Town of Clayton, 51 Wis. 185, 8 N. W. 171;Black v. C. & N. W. Ry. Co., 18 Wis. 208; Ford v. C. & N. W. Ry. Co., 18 Wis. 208;Fopper v. Wheatland, 59 Wis. 623, 18 N. W. 514;Hein v. Fairchild, 87 Wis. 258, 58 N. W. 413;Laird v. Otsego, 90 Wis. 25, 62 N. W. 1042; 20 Encyc. Pl. & Pr. 1021, 1026, 1052; Gager v. Marsden, 101 Wis. 598, 77 N. W. 922;Wechselberg v. Michleson et al., 105 Wis. 452, 81 N. W. 657;Smith v. Scott, 93 Wis. 453, 67 N. W. 705;Reinhart v. Fire Ass'n, 93 Wis. 452, 67 N. W. 701;Cook v. Menasha, 95 Wis. 215, 70 N. W. 289;National D. Co. v. Seidel, 103 Wis. 489, 79 N. W. 744;McKenney v. Minahan, 119 Wis. 657, 97 N. W. 489;State ex rel. School District v. Thayer, 74 Wis. 48, 41 N. W. 1014;State ex rel. Smith v. Eau Claire, 96 Wis. 95, 71 N. W. 123;Lund v. Chippewa Co., 93 Wis. 640, 67 N. W. 927, 34 L. R. A. 131;State ex rel. City, etc., v. Davidson, 114 Wis. 563, 88 N. W. 596, 90 N. W. 1067, 58 L. R. A. 739;Kelly v. Pittsburg, 104 U. S. 78, 26 L. Ed. 659; Elliott, Corp. § 46, pp. 38, 152; 27 Encyc. Law (2d Ed.) 631, 886, 632; Read v. Plattsmouth, 107 U. S. 568, 2 Sup. Ct. 208, 27 L. Ed. 414;State v. Sauk Co., 70 Wis. 485, 36 N. W. 396;Curtis v. Whipple, 24 Wis. 350, 1 Am. Rep. 187;Knowlton v. Supervisors, 9 Wis. 410;Soens v. Racine, 10 Wis. 271;Meyer v. Prairie du Chien, 9 Wis. 233;Town of Dakota v. Winneconne, 55 Wis. 522, 13 N. W. 559;Portage v. Neshkoro, 109 Wis. 520, 85 N. W. 414; 22 Encyc. Law, 1000.Tenney, Hall & Tenney and George W. Stephens, for appellant.

Daniel H. Grady, for respondent.

TIMLIN, J. (after stating the facts as above).

The city in its complaint averred its corporate organization and existence and that of the defendant; that the plaintiff was at the times mentioned in the complaint conducting and maintaining a free and accredited high school under the laws of this state, and defendant conducted a system of public district schools, but had within its limits no free high school. During the school year of 1902 and 1903, ending June 12, 1903, certain persons of school age, residing in the defendant town and otherwise qualified, entered the free high school of said plaintiff. June 13, 1903, the secretary of the free high school board of plaintiff made a sworn statement to the clerk of the defendant, setting forth the residence, name, age, and number of months in attendance during the preceding year of each person so admitted from the defendant town, also showing the amount of tuition which, under the laws, the plaintiff was entitled to receive from each such person and the aggregate sum for tuition for all persons so admitted, and filed this statement as a claim against the defendant town. A copy of this statement is annexed to and made a part of the complaint. Thereafter, on March 8, 1905, the secretary of the free high school board of the plaintiff made a sworn statement to the town clerk of defendant, setting forth the residence, name, age, and date of entrance to such school, and the number of months' attendance during the preceding school year of each such person so admitted from said town, and showing the amount of tuition which under the laws of the state of Wisconsin the plaintiff was entitled to receive for each such person and the aggregate sum for tuition for all such persons. This statement was filed as a claim against the defendant town, and a copy of it is annexed to and made a part of the complaint. It is then averred that the city of Columbus, its school board, agents, and officers have each and all fully complied with the provisions of chapter 188, p. 234, Laws of 1901, and with all amendments thereto applicable to the subject-matter referred to in the complaint, and have duly performed all the conditions upon their part to be performed. The claim was disallowed by the town board more than 10 days before the action was commenced.

The original charter of Columbus (subchapter 12, c. 57, p. 105, Laws of 1874) provided for the election for a term of three years by the mayor and common council of one person on the first Monday in July, 1875, another on the first Monday in July, 1876, and another on the first Monday in July, 1877, and one annually thereafter. These persons were known as “school commissioners,” and formed the “board of education of the city of Columbus.” Chapter 181, p. 577, vol. 2, Laws of 1883, purported to revise, codify, and amend chapter 57, p. 59, of the Laws of 1874, and provided merely for the election annually by the common council at its regular meeting in May of one school commissioner, who should hold office for three years, but recognized the then existing board by other provisions. Among the duties of this board is that of deciding upon the number of teachers to be employed, the grade of school to be kept by each, the amount of salary to be paid to each teacher, to make contracts with school teachers, to arrange and determine terms and vacations in all public schools, to establish rules and regulations for schools not in conflict with the laws of this state, to make contracts for fuel, stationery, and articles of furniture, to submit to the common council annually in October a report showing the amount of teachers' wages that have accrued and become due during the preceding year and the amount of indebtedness accruing on contract or otherwise that has been made by order of the board of education, with an estimate of the amount required for carrying on the schools for the ensuing year. This board reports to the common council the necessity for repairs on schoolhouses exceeding $100 in cost. It reports also its opinion upon the necessity of an additional schoolhouse or school sites, with estimates of the cost of the sites, and a plan of the proposed building, with estimate of cost of the same. It audits each and every indebtedness of the city for school purposes and issues orders therefor on the city treasurer, paid out of the school fund, and signed by the president and secretary of the board. All money received or raised in the city of Columbus for school purposes is to be distributed only on such orders of the board of education. The city council has to some extent a superintending control over the board of education. The title to all schoolhouses and school property is vested in the city. The charter provides that the state board of education shall have power to permit the children of persons not residents of said city to attend in either of the schools therein under the care and control of the board of education, upon such terms as said board shall by resolution prescribe, fixing the tuition which shall be paid therefor. Permits to so enter the school shall be issued by the city superintendent of schools, who shall report his action in so doing to the board of education, and he shall not issue any greater number of permits than may be authorized or sanctioned by the board of education. All permits must specify the amount to be paid by such nonresident pupil, and no such pupil shall be admitted to any school of the city until he has exhibited the receipt of the city treasurer that the amount specified in such permit has been paid into the treasury. All money so received for tuitionbecomes a part of the school fund of the city. No general law of the state contravening the...