Seifert v. Sch. Dist. No. I of City of Cudahy

• Decision Date: 04 June 1940
• Parties: SEIFERT v. SCHOOL DIST. NO. I OF CITY OF CUDAHY et al.
• Court: Wisconsin Supreme Court

235 Wis. 489

292 N.W. 286

SEIFERT

v.SCHOOL DIST. NO. I OF CITY OF CUDAHY et al.

Supreme Court of Wisconsin.

June 4, 1940.

Appeal from a judgment of the Circuit Court for Milwaukee County; Walter A. Schinz, Judge.

Action by Edward C. Seifert against School District No. 1 of the City of Cudahy and others for breach of contract. From a judgment dismissing the complaint on the merits, plaintiff appeals.–[By Editorial Staff.]

Affirmed.

Action by Edward A. Seifert against the City of Cudahy and others to recover damages for breach of a contract of employment as superintendent of schools commenced November 8, 1933. From a judgment dismissing the complaint on the merits, entered December 12, 1939, the plaintiff appeals. The material facts are stated in the opinion.Hayes & Hayes and Alfred R. Gandrey, all of Milwaukee (William A. Hayes, of Milwaukee, of counsel), for appellant.

Edward G. Minor, City Atty., and Ward Dunphy, Asst. City Atty., both of Cudahy, for respondents.

FOWLER, Justice.

The plaintiff sues to recover damages which he claims to have sustained because he was wrongfully discharged as superintendent of the Cudahy schools before expiration of the term for which he was hired at a stipulated salary of $5,000 per year. He sues School District No. 1 of the city of Cudahy, the city of Cudahy, and individual defendants designated as the members of the Board of Education of said school district. He divides his complaint into two causes of action, one for $13,735.93 covers the period from November 9, 1927, the time of his discharge, to June 30, 1930. The other is in the alternative and covers a part of the same period and is based on a contract for a term commencing July 1, 1925, and expiring June 30, 1928, at $3,700 per year. Before this contract expired the contract first above mentioned was executed, and the alleged wrongful discharge of the plaintiff and refusal to permit him to continue in performance of the contracts occurred. The contracts were made with the Board of Education of said school district before the enactment of Ch. 425, Laws of 1927, which went into effect July 1, 1928. By this act the legislature adopted the “city plan” of school administration in all cities of the fourth class wherein the territorial limits of existing school districts coincided with the territorial limits of cities, which then was the situation in the fourth class city of Cudahy.

To the complaint the defendant city by answer interposed as defense to both causes of action that the school board is not a separate entity, but under secs. 40.50 to 40.60, Wis. Stats., is a mere agent of the city of Cudahy, which is a body corporate and alone is subject to suit upon claims under contracts made by the school board. Upon the trial the plaintiff by leave of court by amendment added to its complaint a paragraph alleging that on June 2, 1933, the plaintiff duly filed his claim, that the school board rejected the claim and refused its payment, and that the school board so advised the plaintiff. The defendant city then filed an amended answer wherein, beside incorporating denials, it alleged that the plaintiff never filed any itemized and verified claim with the city clerk as required by secs. 62.12 (8) (a) and 62.25 (1) (a), Stats., as condition precedent to commencement of the action.

The case was tried to the court without a jury. The court found that School District No. 1 of the city of Cudahy was abolished by Ch. 425, Laws of 1927; that the territory within the city limits of Cudahy when the act was passed constituted an entire school district; that on July 1, 1928, the city school plan provided by secs. 40.50 to 40.60, Stats., became effective; that on February 16, 1925, the plaintiff entered into a written contract of employment as city superintendent of said school district for three years at a salary of $3,700 per year, and that before its expiration on April 1, 1927, this contract was superseded by another for three years beginning July 1, 1927, at $5,000 per year; That plaintiff entered in performance of said first contract and continued to serve as superintendent of schools under said contracts until November 9, 1927, when he was unlawfully discharged by said School District No. 1; that a letter written by plaintiff dated January 31, 1928, was sent by plaintiff and received by said school board, but that it was insufficient to constitute the presentation of a claim or to require action thereon by the board; that on June 8, 1929, another letter was sent to and received by said board and another on June 2, 1933; but that none of said letters reached or came to the attention of either the city clerk or the common council of Cudahy or was ever presented to the council. The court as conclusions of law held that none of the letters above referred to constituted the presentation of a claim against either the school board or the city of Cudahy; that such action as was taken by the school board on the letters of June 8, 1929 and June 2, 1933, was without legal effect for want of jurisdiction of the board to act; that no claim was filed with the city of Cudahy; and that the complaint be dismissed without costs to the city of Cudahy.

That the Act of 1927 above referred to put School District No. 1 of the city of Cudahy out of existence, so that it was not a legal entity was in effect held in State ex rel. Board of Education v. Racine, 205 Wis. 389, 236 N.W. 553. It is there said, 205 Wis. at page 393, 236 N.W. at page 554: “The present legislative plan *** [created by said Act of 1927] seems to be to make the city the municipal entity for the administration of school affairs. The members of the school board are city officers. *** All of these provisions [many statutes previously cited in the opinion] and others might be cited to indicate the legislative purpose that school affairs shall constitute a municipal function in cities, and that the board of education is merely a city agency.”

It is further said, 205 Wis. at page 396, 236 N.W. at page 555: “The board of education is not a body corporate. It is not specifically authorized to sue or be sued.”

It is also said, 205 Wis. at page 395, 236 N.W. at page 555: “In arriving at our conclusion we have not overlooked the provisions of section 40.51, Stats., which provides that ‘each city, affected by this plan, is a single and separate school district.’ Just what the legislative thought was in making this declaration is not clear. It is quite apparent that by so doing it was not intended to create a separate and distinct municipal entity out of the territory within the city limits.”

In another case, Board of Education v. Racine, 205 Wis. 489, at page 492, 238 N.W. 413, at page 414, it is said, “There is an absence of any language in the statutes referred to [Ch. 40] manifesting any legislative intent to create a school district here [in city of Racine] which would amount to an entity separate and distinct from the city.”

The case of Stroud v. School District No. 1 of Stevens Point, 37 Wis. 367, which considered a statutory charter provision of the city placing the affairs of the school district named in the control of the city council is to the same effect. This case holds that the effect of the charter provision was to terminate the corporate existence of the school district and held further that it rendered the city, as the legal successor of the school district, liable for its debts, and properly sued to recover teacher's wages. It is said, 37 Wis. at page 372: “It is therefore very certain that the appellant [teacher] 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.”

[1] The circuit court was clearly right in holding School District No. 1 of the city of Cudahy no longer in existence and in holding the city of Cudahy liable for the plaintiff's claim, if any he has, and the only entity subject to suit thereon.

In our view of the case the only other matter we need consider is whether sending to the school board the letters referred to in the court's findings constitute sufficient basis for the instant action. There is no claim that the facts are not as found by the court. The controversy is...