State ex rel. Schertz v. Spiegel

• Decision Date: 06 April 1920
• Citation: 171 Wis. 260,176 N.W. 1022
• Parties: STATE EX REL. SCHERTZ v. SPIEGEL ET AL.
• Court: Wisconsin Supreme Court

171 Wis. 260

176 N.W. 1022

STATE EX REL. SCHERTZ

v.SPIEGEL ET AL.

Supreme Court of Wisconsin.

April 6, 1920.

Appeal from Circuit Court, Shawano County; Edgar V. Werner, Judge.

Mandamus by the State of Wisconsin, on the relation of Frank Schertz, against Ed Spiegel and others, as director, treasurer, and clerk, respectively, of School District No. 5 of the Town of Fairbanks, Shawano County, Wis. Judgment quashing alternative writ and dismissing action, and relator appeals. Affirmed.

This action was begun by relator on March 9, 1919, when he filed a petition for a peremptory writ of mandamus commanding the defendants to provide transportation for the school children of district No. 5, including relator's children, and to enter into contract with some suitable person for such transportation as provided in section 40.16 of the Statutes of 1917. The petition alleges that at an annual school meeting of district No. 5 in July, 1918, and at an adjournment thereof held on August 1, 1918, the electors of the district voted to suspend all schools in the district for the approaching school year and to furnish and provide transportation for all children of school age to the school in joint district No. 1 of the town of Fairbanks and village of Tigerton, and that the schools of district No. 5 were suspended accordingly; that the school board of district No. 5 failed to engage a person to transport the children of the district as required by law, engaging, however, one Harvey Fink by verbal agreement to perform such service; that the school board failed to enter into a written contract with Harvey Fink as required by law and failed to require Harvey Fink to furnish a bond in the sum of $300 or in any amount whatever; that the school board failed to require Harvey Fink to furnish a safe and comfortable conveyance, and the conveyance furnished by Harvey Fink was utterly inadequate and unsafe; that Harvey Fink is not a trustworthy and responsible person to have the charge of the children; that he has so failed in his duty that the two children of relator have been able to attend the school in the adjoining school district only eleven days since September 1, 1918.

An alternative writ was granted by the court. The defendants demurred to the petition, which demurrer was sustained. An amended petition was filed April 3, 1919, which defendants moved to quash. A hearing was had on this motion May 12, 1919. On the argument of this motion defendants asked leave to withdraw such motion to quash and for permission to file a motion to make more definite and certain. Such leave was granted, and, after hearing the argument on the motion to make more certain and definite, the court on May 21, 1919, made an...