Harley v. Lindemann

• Decision Date: 07 November 1906
• Citation: 129 Wis. 514,109 N.W. 570
• Parties: HARLEY v. LINDEMANN ET AL.
• Court: Wisconsin Supreme Court

129 Wis. 514

109 N.W. 570

HARLEY

v.LINDEMANN ET AL.

Supreme Court of Wisconsin.

Nov. 7, 1906.

Appeal from Circuit Court, Milwaukee County; J. C. Ludwig, Judge.

Action by William R. Harley against August S. Lindemann and others. From a judgment in favor of plaintiff, defendants appeal. Reversed and remanded, with directions.

The action was equitable to restrain persons assuming to act as the board of school directors of the city of Milwaukee from carrying out a threatened purpose to make a change in text books used in the schools of such city.

The following is a fair synopsis of the amended verified complaint which is the foundation of the order appealed from: Plaintiff complains on behalf of himself and others similarly situated. He is a citizen and taxpayer of the city of Milwaukee and a patron of its public schools, having three children attending the same. The defendants claim to have been appointed and assume to act, as members of the school board of said city, and threaten as such board to abolish the use of certain text books in use in the public schools of such city and to adopt others in place thereof. Said defendants for their authority to act as members of such board refer only to chapter 273, p. 403, Laws of 1905, which in fact confers no authority upon them. Such chapter purports to create a board of school directors for said city and provides that a committee consisting of the president of the board and four members selected by him shall examine, certify, employ, classify, transfer and promote teachers, subject to amendment, rejection or confirmation by the board; that a committee also consisting of the president and four members selected by him shall be appointed to select and determine the courses of study and text books to be used, subject to approval by the board, as in case of teachers. Said chapter further purports to confer upon said board power to make by-laws for its own government and the government of the schools of said city, and also the usual powers exercised by similar boards. Prior to November 1, 1905, the defendants adopted a rule that the two committees mentioned should consist of the same persons; also a rule of procedure for the change or adoption of text books, to the effect that the superintendent of schools shall, prior to March 1st, in each year, receive such suggestions as may be offered respecting such subject and by May 15th thereafter submit to the committee on courses of instruction the text books and list of changes which he deems advisable to have considered with his reasons therefor; that at the regular meeting in April thereafter such committee shall report to the board a list of subjects out of the list submitted by the superintendent regarding which the committee will consider the change or adoption of text books, such report to serve as a notice to the publishers of such books enabling them, if they wish, to submit samples and prices; and that at the regular meeting in May thereafter the committee shall report to the board such changes or adoptions out of such list as may be recommended by the superintendent and approved by the committee, which report shall be acted upon finally by the board at the regular meeting in June thereafter. Plaintiff is informed and believes that the defendants threaten to, and unless restrained by the court, will, abolish “Harper's Readers” in the grades two to five inclusive in such school and substitute therefor “Stepping Stones to Literature,” books 1 to 6 inclusive, which are more expensive though inferior to said “Harper's Readers.” By reason of the premises defendants purpose without any authority of law to force the patrons of said school to purchase more expensive and less suitable books than those in use, though propositions have been made to furnish cheaper and better books than the said “Stepping Stones to Literature” in case “Harper's Readers” are to be abolished. Such propositions included offers to furnish such superior books in place of “Harper's Readers” free of cost, while the proposition of the board is to compel the surrendering of “Harper's Readers” and payment of 18 cents to 35 cents per copy for the new books to the injury of the patrons of the schools, in the aggregate of about $10,000.00, and to their irreparable injury. When defendant makes a change in text books the law prohibits any subsequent change in that particular regard under five years so that the board, in case it shall be permitted to proceed, will impose on the patrons of the schools of said city the burden of purchasing from time to time the new books for a period of five years. The defendants in fact have no lawful authority to do the act so threatened. Plaintiff and those similarly situated are remediless to prevent the doing of such threatened act and the subsequent loss to them, unless a court of equity will interfere in their behalf.

There was a proper prayer for permanent relief and for an interim injunction restraining defendants from doing the alleged threatened act during the pendency of the litigation. The temporary restraining order was granted. The defendants by verified amended answer admitted that they claimed to be members of the board of school directors of the city of Milwaukee, deriving their authority from chapter 273, p. 403, Laws of 1905, and alleged that they were in fact duly qualified members of the school board of said city and that as such had full authority to make the change in text books sought to be prevented; that so far as they had gone in the matter they had proceeded in due course under such law and the rules of the board adopted pursuant thereto; that the recommendations of the committee to make the change in text books mentioned in the complaint was pending before the board; that until action thereon by such board defendants could not state whether “Harper's Readers” would be displaced by “Stepping Stones to Literature,” but that whatever the board should finally do in the matter would be pursuant to and justified by such chapter. The answer contained appropriate allegations putting in issue that part of the complaint charging the committee of the board in considering the matter of changing text books with indiscreet conduct, and allegations to the effect that all proceedings in respect to the matter were justified by said law of 1905.

At the outset on a verified complaint a temporary injunction was granted. Upon the amended pleadings and affidavits a motion made by defendants for an order vacating such temporary injunction was considered and denied, the court rendering an opinion in the matter showing that as it viewed the same it turned on the constitutionality of chapter 273, p. 403, Laws of 1905. Such opinion was to the effect that the constitutionality of the act was challenged, first, because it was a private law attempting to amend the charter of the city of Milwaukee; second, because it violated the uniformity of the school system contrary to the Constitution; third, because it imposed upon circuit judges nonjudicial duties. The court disapproved of the second and third grounds but expressed an opinion that the first ground was well taken, but nevertheless overruled plaintiff's contention in that regard and refused to declare the act unconstitutional and continued the temporary injunction upon the theory that there was a probability that plaintiff might finally recover, in which event, without the temporary restraining order being left in force, the judgment would be ineffectual, and that to continue the same during the litigation would not injure defendants or the public. From the order accordingly entered refusing to vacate the temporary injunctional order defendants appealed.John T. Kelly, City Atty., and Benjamin Poss, Asst. City Atty. (James G. Jenkins, of counsel), for appellants.

A. C. Umbreit (Charles Quarles, of counsel), for respondent.

MARSHALL, J. (after stating the facts).

The order complained of, as will be seen from the statement, was entered upon the theory that chapter 273, p. 403, Laws of 1905 may be unconstitutional and that respondent may on that account finally obtain judgment as prayed for, and that without the status quo being preserved in the meantime the purpose of the litigation will nevertheless be defeated, to respondent's...