Tyre v. Krug

Decision Date16 December 1914
Citation159 Wis. 39,149 N.W. 718
PartiesTYRE v. KRUG ET AL.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by W. D. Tyre against H. E. Krug and others. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Winslow, C. J., and Vinje, J., dissenting.

The plaintiff brings this suit as a taxpayer against the defendants, who are the principals of five public high schools in the city of Milwaukee. It is alleged that the defendants have been conducting regular stores in the school buildings under their charge and control, wherein they have sold drawing instruments, schoolbooks, stationery, and blanks for a profit above the cost of such articles; that they pay no compensation for the use of the buildings for this purpose; that the school board denied the request of the Milwaukee Stationers' & Manufacturers' Club to prohibit the use of the buildings for this purpose, and by an unanimous vote gave its assent that the same should be continued. It is also alleged that the plaintiff is now, and for years has been, engaged as a dealer in schoolbooks and school supplies, and that his income has been diminished by reason of these acts of the defendants. The plaintiff further alleges that his remedy at law is not adequate. He asks judgment for $1000 damages sustained by him because of the acts of the defendants, and that the defendants be enjoined and restrained during the pendency of this action, and until the further order of the court from making any use of the buildings for the purpose of carrying on this business of offering for sale any schoolbooks, or other school supplies, or otherwise attempting to make use of the school buildings under the permission given by the school board, and that he have such other and further relief as may be equitable, together with his costs and disbursements herein.

Injunction was granted during the pendency of this action upon the depositing of a bond for $250 by the plaintiff. The defendants demurred to the complaint upon the grounds: (1) Several causes of action have been improperly united; and (2) the complaint does not state facts sufficient to constitute a cause of action. The court sustained the demurrer on the second ground, and ordered that the temporary injunction be dissolved. From this order sustaining this demurrer this appeal is taken.C. H. Hamilton, of Milwaukee, for appellant.

Daniel W. Hoan, City Atty., and Clifton Williams, First Asst. City Atty., both of Milwaukee, for respondents.

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

[1] It is contended that the plaintiff has attempted to join an individual cause of action in his favor for damages with an action, which he prosecutes as taxpayer in favor of himself and all others similarly situated, for an injunction to restrain defendants from using the schoolhouses to conduct the alleged private businesses. The allegations of the complaint are that the plaintiff has been damaged in his private business, for which he seeks to be compensated. Can such a cause of action be joined with the equitable relief sought by the plaintiff as representative of a class, namely, the taxpayers of the city of Milwaukee? Section 2647, Stats., prescribes what causes of action may be united in the complaint. “But the causes of action so united must all belong to one of these classes and must affect all the parties to the action. * * *” The complaint before us seeks to unite an action in equity prosecuted by the plaintiff in his representative capacity of citizen and taxpayer of the city of Milwaukee, in behalf of himself and all others similarly situated, and an action in his individual capacity to recover damages which he personally claims to have suffered through the acts of the defendants. No one except the plaintiff has any interest in his personal action, while the equitable cause of action for an injunction is in favor of a large number of persons whom he represents as a class. As held in Hawarden v. Coal Co., 111 Wis. 545, 87 N. W. 472, 55 L. R. A. 828: “Potentially all of the class are parties.” Such an action cannot be united in the same complaint with an action which is brought to redress the personal wrongs of the plaintiff.

“The two causes of action would not both belong to any one of the classes specified in section 2647, Stats. 1898, nor would they both affect all parties to the action, as required by that section.” Luther v. Luther, 118 Wis. 112, 94 N. W. 69, 99 Am. St. Rep. 977, and cases cited.

[2] The trial court held that the complaint does not allege sufficient facts to constitute a cause of action on the ground that the board of school directors of the city of Milwaukee is authorized to permit defendants the use of the school buildings as is set forth in the complaint. The court based its decision on the provisions of chapter 459, Laws of 1907, and section 453e, Stats. 1913.

The buildings erected for the public schools are to be devoted to the purposes contemplated by the statutes of maintaining the public schools in providing popular instruction. The Legislature has by law made provision to promote the cause of popular education by the organization of local school authorities, and conferred on them the power to raise by general taxation the money required to acquire schoolhouse sites and for building schoolhouses, and imposed upon school boards the duties of maintaining the required schools and to devote these school properties to school purposes and manage them as prescribed by law. The allegations of the complaint are, in effect, that the school directors of the city of Milwaukee granted the defendants permission to use the school buildings of the city for the purpose of conducting private schoolbook and supply businesses for their personal profit. Do the statutes authorize the use of the public school buildings for conducting such private school businesses for personal profit? We have discovered no provision in the statute that confers any authority on school officers to grant the use of schoolhouses for such a private purpose, unless such authority is granted by the acts on which the trial court based its decision. Chapter 459, Laws of 1907, is “An act relating to school boards and common and high schools in cities of the first class.” Section 18 thereof provides: “The board shall be governed in all things by the school laws of the state, except as they are altered or modified by this act.” The trial court considered that section 8 of this act, providing that the...

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12 cases
  • Schlosser v. Allis-Chalmers Corp., ALLIS-CHALMERS
    • United States
    • Wisconsin Supreme Court
    • 14 Octubre 1974
    ...to function if it is denied the right to collect taxes . . .') (not a class action).26 (1901), 111 Wis. 545, 87 N.W. 472,27 (1914), 159 Wis. 39, 149 N.W. 718.28 (1946), 248 Wis. 451, 22 N.W.2d 518.29 Homburger, State Class Actions and the Federal Rule, 71 Colum.L.Rev. 609, 613 (1971): 'The ......
  • Beard v. Board of Education of North Summit School Dist.
    • United States
    • Utah Supreme Court
    • 10 Diciembre 1932
    ... ... the following cases: Lincke v. Moline Board of ... Education , 245 Ill.App. 459; Tyre v ... Krug , 159 Wis. 39, 149 N.W. 718, L. R. A. 1915C, ... 624; Sugar v. Monroe , 108 La. 677, 32 So ... 961, 59 L. R. A. 723; Herald v ... ...
  • Niklaus v. Abel Const. Co.
    • United States
    • Nebraska Supreme Court
    • 28 Junio 1957
    ...cannot join an individual cause of action and a representative cause of action. See, 1 C.J.S. Actions § 97, p. 1282; Tyre v. Krug, 159 Wis. 39, 149 N.W. 718, L.R.A.1915C, 624; Archer v. City of Grand Rapids, 255 Mich. 485, 238 N.W. 267; Paradise v. Nowlin, 86 Cal.App.2d 897, 195 P.2d 867; N......
  • Milwaukee Horse & Cow Comm'n Co. v. Hill
    • United States
    • Wisconsin Supreme Court
    • 8 Marzo 1932
    ...insufficient to enable the maintenance of the action by the plaintiff, Max Weisfeldt. In this connection, the case of Tyre v. Krug, 159 Wis. 39, 149 N. W. 718, L. R. A. 1915C, 624, is relied upon with much assurance. In that case it appeared that the principals of five public high schools i......
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