State ex rel. Bd. of Educ. of Sch. Dist. of City of Racine v. City of Racine

• Decision Date: 12 May 1931
• Citation: 236 N.W. 553,205 Wis. 389
• Parties: STATE EX REL. BOARD OF EDUCATION OF SCHOOL DIST. OF CITY OF RACINE v. CITY OF RACINE ET AL.
• Court: Wisconsin Supreme Court

205 Wis. 389

236 N.W. 553

STATE EX REL. BOARD OF EDUCATION OF SCHOOL DIST. OF CITY OF RACINE

v.CITY OF RACINE ET AL.

Supreme Court of Wisconsin.

May 12, 1931.

Appeal from a judgment of the Circuit Court for Racine County; Edward Voigt, Circuit Judge. Affirmed.

Upon the petition of the board of education of the city of Racine an alternative writ of mandamus issued out of the circuit court for Racine county on the 19th day of September, 1930, directed to the city of Racine, its mayor, city clerk, city comptroller, city treasurer, and members of the common council. The board of education demurred to the returns to the alternative writ by the various respondents. Upon the question of law thus raised, the court directed judgment dismissing the petition of the board of education upon its merits. From a judgment so entered on the 6th day of November, 1930, the board of education appeals.Foley & Brach, of Racine, and Benjamin Poss, of Milwaukee, for appellant.

Martin R. Paulsen, of Racine, for respondents.

OWEN, J.

The city of Racine is a city of the second class. Its schools are operated under the city school plan provided by sections 40.50 to 40.60, Stats. A controversy exists between the board of education and the common council in the matter of their respective powers. The board of education had determined that the educational necessity of the city required the erection of a new school building, and demanded of the city council that it cause to be issued the bonds of the city to the amount of $350,000 to pay for the same. The common council refused to accede to the demand. This action of mandamus is brought to compel the city council to issue the bonds of the city to the amount of $350,000 for the purpose of enabling the board of education to proceed with the proposed construction. The question is whether the common council possesses discretion in the matter, or whether it is its duty upon demand to provide such funds as the board of education deems necessary for the management and maintenance of the schools and construction of school buildings.

Section 40.53, Stats., provides that it shall be the duty of the board of education, among other things (11) “to estimate the expenses of the city schools and prepare a budget, which shall be submitted to the common council for its approval. Approval of the council shall also be necessary before the board may purchase any site for a school building or other school uses, or construct school buildings or additions thereto.” Section 40.55, Stats., provides that: “The school board shall annually, before October, make an estimate of the expenses of the public schools for the ensuing year, and of the amount which it will be necessary to raise by city taxation, and certify the same to the city clerk who shall lay the same before the common council at its next meeting. It shall be the duty of the common council to consider such estimate, and by resolution determine and levy the amount to be raised by city taxation for school purposesfor the ensuing year, which amount shall be included in the annual city budget and be called the ‘City School Tax.’ ”

That these provisions confer upon the common council full supervision of the tax burden that shall be imposed upon the city for school purposes seems plain. The board of education is not given authority to levy a tax for school purposes. Neither is it given the power to fix the amount that shall be levied for such purposes, as is the case under the charter of the city of Milwaukee. State ex rel. Harbach v. City of Milwaukee, 189 Wis. 84, 206 N. W. 210. It is simply made the duty of the board of education “to estimate the expenses of the city schools and prepare a budget, which shall be submitted to the common council for its approval.” It is made the duty of the common council “to consider such estimate, and by resolution determine and levy the amount to be raised by city taxation for school purposes for the ensuing year.”

Any doubt that may arise concerning the authority of the board of education in the premises must be due to the fact that school districts have been recognized as separate municipal entities, the territory of which may be coextensive with that of cities, and the power of the common council to limit the amount of taxes that may be raised for school purposes is irreconcilable with the idea that the school district is a separate municipal entity. Section 3 of article 10 of the Constitution makes it the duty of the Legislature to “provide by law for the establishment of district schools.” It will be noticed that nothing was said about school districts. However, the establishment of district schools in rural communities necessarily requires the formation of school districts. School districts are not required if other subdivisions of government may provide district schools. While cities and villages are appropriate entities for administration of educational affairs, until recently no consistent policy has been adopted with reference to the administration of educational affairs in cities. Special city charters specified various forms and methods for the administration of educational affairs. In some cities a board of education was established, while in others the school district system remained in force. This is recognized by section 925--113, Stats. 1898. Where boards of education were created by special charters, they sometimes were and sometimes they were not empowered to levy the school tax. This is recognized by section 925--119, Stats. 1898. However, the general charter law vested in the common council, not only the duty of levying the school tax but of determining the amount that should be so levied. Section 925--119 Stats. 1898; State ex rel. Jones v. Burke, 140 Wis. 524, 123 N. W. 110. This was a step in the interests of uniformity. It also promoted economy and simplicity by utilizing an existing municipality as a medium for the administration of educational affairs.

When the general charter law was revised in 1921, and all special charters abolished, the former provisions of that law relating to schools were carried into chapter 40 of the Revised Statutes, also relating to schools. Chapter 242, Laws of 1921. While there are some verbal differences between section 40.64 (8), Stats. 1923, and section 925--119, Stats. 1898, the substance remains the same. Section 925--119 required the board of education to submit their estimate of the expense of maintaining the public schools for the ensuing year to the common council, and provided that “the same, or so much as they shall approve,” should be levied as a city school tax. This clearly provided that only so much as the city council should approve should be levied as school taxes. Section 40.64 (8), Stats. 1923, as well as section 40.55, Stats. 1929, require the common council to determine by resolution “the amount to be raised by city taxation for school purposes.” The only difference between these provisions as they appear in the Statutes of 1898 and in the Statutes of 1929 is in verbiage and not in substance.

[1][2][3] The present legislative plan, whether our consideration be confined to sections 40.50 to 40.60, inclusive, of the Statutes of 1929, or whether other related provisions of the statutes be regarded, seems to be to make the city the municipal entity for the...