#### The State ex rel. Vandenhouten, Respondent, vs. Vanhuse and others, Appellants.

*November 18*

December *11, 1903.*

*•Constitutional law: Local laws: Title of act: Legislative grant of corporate poioers: Schools and school districts: Apportionment of school fund: Retrospective statutes: Necessary parties.*

1. Ch. 160, Laws of 1903, entitled “An act to legalize the organization of joint school district No. 4, of the towns of R. and L. in K. county, and to legalize the subsequent acts and proceedings of the officers and voters of said'district,” and providing in the body of the act that the designated organization “is hereby in all things legalized,” and its acts and those of its officers and electors are legalized, only embraces one subject, and that subject is sufficiently expressed in the title, within the calls of sec. 18, art. IV, Const., declaring that no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.

2. Said act is not repugnant to subd. 7, sec. 31, art. IV, Const., prohibiting the legislature, by special or private law, to grant corporate powers or privileges, except to cities; nor to subd. 8, sec. 31, art. IV, Const., prohibiting the legislature from enacting any special or private laws for authorizing the apportionment of any part of the school fund.

■3. Ch. 160, Laws of 1903, legalizing an attempted organization of a school district, was enacted during the pendency of an appeal from an order overruling a demurrer to a complaint demanding judgment that such school district had no existence, and is *held*to be a valid enactment, and that effect must be given to its retrospective provisions.

■4. In an action to obtain judgment that a school district has no existence, and to exclude defendants from acting as school officers therein, the school district itself should be joined as a party defendant.

Appeal from an order of tbe circuit court for Kewaunee 'county: Michael KjbwaN, Circuit Judge.

*Reversed.*

This is an appeal from an order overruling a demurrer to tbe complaint demanding judgment tbat tbe pretended Joint School District No. 4 of tbe towns of Eed Kiver and Luxem-*16berg bas no existence, and to exclude tbe defendants from acting as school officers therein. The complaint alleges, in effect: That the relator is a citizen of the United States, and a resident and taxpayer in the town of Luxemberg, in Ke-waunee county, and school clerk of District No. 4 therein. That for more than ten years last past there existed Joint School District No. 2, of Red River and Green Bay, in the counties of Kewaunee and Brown; also district No. 1 of Red River, in Kewaunee county; also Joint District No. 1, of the towns of Red River, Luxemberg, Casco, and Lincoln, in Ke-waunee county; also District No. 4 in Luxemberg; also Joint District No. 3 in the towns of Luxemberg and Casco; also District No. 7 in Luxemberg — all created under ch. 27/ Stats. 1898. October 23, 1899, a petition was filed in the office of the clerk of Luxemberg for a joint school district from Luxemberg and Red River, and, pursuant to a call, a meeting of the supervisors of the towns of Casco, Lincoln, Luxemberg, and Red River, all in Kewaunee county, was held, and such application was by order denied, which order was duly signed and filed and entered of record, and no appeal therefrom has ever been taken, and no other petition therefor has ever been made. In the latter part of 1899, or the fore part of 1900, the defendants met at Red River or Luxemberg, and “without any authority of law, and without any proceedings under law, and with the intent to unlawfully usurp corporate existence, formed, or attempted to form, a pretended school district, and had then and there assumed to form an alleged school district, calling the same 'Joint School District No. 4 of the Towns of Luxemberg and Red River,’ ” in the territory therein described, from said Joint School District No. 2, School District No. 1, School District No. 4, School District No. 7, and Joint School District No. 1, and that the defendants made up a fund among themselves from their private means, and built a schoolhouse, and contributed money, in part, for the support of the school *17therein, the payment of teachers, etc., and maintained or attempted to maintain a public school, and to exercise corporate powers of a school district, and constituted the defendants “the school board” of Joint School District No. 4, with a director, a treasurer, and a clerk; and they assumed powers as such, and drew and used what would have been their proportionate share of the public school moneys, had there been such a district, and prevented the relator from performing his duty as clerk of School District No. 4 in taking the census for 1902, and that the defendant Delebroux took the same, and that the defendants formed themselves into a corporation without being incorporated. That June 27, 1902, the Attorney General refused to bring suit for such misconduct, and thereupon the relator commenced this action.

Eor the appellants there was a brief by *O. H. Bruemme-r,*attorney, and *Wigman, Martin & Martin,*of counsel, and oral argument by *P. H. Martin.*

Eor the respondent the cause was submitted on the brief of *John Wattaiua.*

Oassoday, O. J.

1. It is assumed, for the purpose of this appeal, that at the time of the commencement of this action “Joint School District No. 4 of the towns of Luxemberg and Eed Eiver,” mentioned in the complaint, was not legally organized, and had no legal existence. Subsequently, and pending the appeal to this court, the legislature passed an act entitled “An act to legalize the organization of Joint School District No. 4, of the towns of Eed Eiver and Luxem-berg, in Kewaunee county, and to legalize the subsequent, acts and proceedings of the officers and voters of said district.” Ch. 160, Laws of 1908. The first section of that act declares that “the organization of Joint School District No. 4 of the towns of Eed Eiver and Luxemberg, in Ke-waunee county, comprising” the territory therein described, *“is hereby in all things legalized”*which territory is the same *18as alleged in tbe complaint to Have been included by tbe defendants in tbeir attempt to organize Joint School District No. 1 in tbe latter part of 1899, or fore part of 1900, except 120 acres, wbicb appears to have been omitted. Tbe second section of tbe act declares:

> “All acts and proceedings of tbe said Joint School District No. 4, of tbe towns of Red River and Luxemberg, in Ke-waunee county, and of tbe electors and officers thereof are hereby legalized to tbe same extent and effect as if said school district bad been legally organized in tbe first instance.”

Tbe important question in tbe case is whether tbe act is valid and effectual according to its terms. There can be no question but that it is a “local bill,” within tbe meaning of tbe section of tbe constitution wbicb declares that “no private or local bill which may be passed by tbe legislature shall embrace more than one subject, and that shall be expressed in tbe title.” Sec. 18, art. IV. *Milwaukee Co. v. Isenring, 109*Wis. 9, 85 N. W. *131; Wagner v. Milwaukee Co.*112 Wis. 601, 88 N. W. 577; *Diana Shooting Club v. Lamoreux,*114 Wis. 44, 89 N. W. 880; *Verges v. Milwaukee Co.*116 Wis. 191, 93 N. W. 44. Does tbe act “embrace more than one subject?” If not, is that subject “expressed in tbe title ?” In tbe last two cases it was expressly held that “tbe constitution does not require *the title of*a private or local legislative act to go further than to express tbe subject covered by tbe body of tbe law. It leaves tbe method of expressing such subject to legislative discretion, within all reasonable boundaries. The statement of a primary purpose in general terms in a constitutional sense reasonably includes all *the*means designed *to*facilitate *the*accomplishment thereof.” Tbe act recognizes tbe organization of tbe district so formed in tbe latter part of 1899 or tbe fore part of 1900, and nearly all of tbe territory over wbicb it assumed jurisdiction, and thereby expressly purported to legalize tbe same in all things, including “all acts and proceedings” of *19■such, organization, “and of the electors and officers thereof . . . to the same extent and effect as if said school district had been legally organized in the first instance.” We must hold that the act only embraces one subject, and that that subject is sufficiently expressed in the title. If the act is ■effective according to its terms, then it relates back to the inception of the organization, which was more than two years prior to the commencement of this action.

2. It is claimed that the act is in contravention of the provisions of the constitution which prohibit the legislature “from enacting any special or private laws . . . (7) for granting corporate powers ox privileges, except to cities; (8) for authorizing the apportionment of any part of the school fund.” Sec. 31, art. IY. It was hold by this court more than twenty years ago that the subdivision of that section of the constitution as it then stood which prohibited “the enactment of any special or private law for *incorporating*any town or village by special charter or for the amendment ■of such charter” had “no reference to mere *quasi-corporations*like the towns which exist as political subdivisions of the state.” *Cathcart v.*Comstock, 56 Wis. 590, 605-607, 14 N. W. 842. And it was there further held, in effect, that the creation of such towns brought them under general statutes which had previously provided that such organized towns should be a body corporate, with certain specified powers. So in a later case it was held that the division of ■existing towns and the creation of new towns by direct action of the legislature is not “the enacting of any special or private laws . . . for incorporating any town,” within the meaning of the same clause of the constitution. *State ex rel. Graef v. Forest Co.*74 Wis. 610, 43 N. W. 551. Certainly there can be no more objection to the creation of school districts by direct action of the legislature than there is to the creation of towns in that way. Towns are thus held to be mere quasi-corporation's, and certainly school districts can*20not be regarded as anything more. The general statutes provide for the formation of school districts and joint school districts, and the alteration thereof. Secs. 412 — 420. These-statutes expressly declare that “a district lawfully organized is a body corporate and possesses the usual powers of a public corporation.” Sec. 417. Stats. 1898. This applies to joint school districts as well as other districts. If the curative act in question had the effect to legalize the organization “to-the same extent and effect as if said school district had been legally organized in the first instance,” as therein expressed,, then such district, when so organized, was thereby brought within the provisions of the general statute quoted, and, by virtue of such general statute, became a body corporate, and possessed of the usual powers of a public corporation. So-all provisions of the general statutes applicable to such school districts became applicable to the new district so legally organized. The act in question did not attempt to grant “corporate powers or privileges,” nor to apportion any part of the school fund, and hence it is not repugnant to the provisions of the constitution quoted.

3. It is contended that the act in question is void because it retroacts upon a past controversy, and is an attempt to reverse the decision of the trial court made in the exercise of undoubted authority. The past controversy thus referred to, as indicated by some of the decisions cited in support of the contention, relate to controversies which had terminated in-judgment before the curative act. *Charles Baumback Co. v. Singer,*86 Wis. 329, 56 N. W. 873. To that case may be added Wis. *Tel. Co. v. Krueger,*115 Wis. 150, 153, 154, 90 N. W. 458, and numerous cases there cited. Others reláte-lo curative acts interfering with vested rights, or imposing-some new obligation. In the case at bar no judgment was-ever entered. No vested rights are involved, and no new obligation is imposed. In the case of *Rood v. C., M. & St.*P. *21*R. Co.*43 Wis. 146, tbe plaintiff recovered judgment in tbe circuit court for three times tbe amount of excessive freight charges. The railway company appealed to this court. On the argument here, counsel for the plaintiff was confronted with an act of the legislature published a few days before repealing the statute upon which the judgment was based, and ■so it was held that no recovery could be had in that action. To the same effect, *Freiberg v. Singer,*90 Wis. 608, 611, 63 N. W. 154; *Davison v.*Brown, 93 Wis. 85, 88, 67 N. W. 42. After the motion to dismiss the appeal had been denied by the Supreme Court of the United States, in the celebrated *Mc-Cardle*Case, 6 Wall. 318, 327, congress passed an act repealing the provisions of the act which authorized the appeal ; and the court, among other things, held that “the repeal -of such an act, pending an appeal provided for by it, is not an exercise of judicial power by the legislature, no matter whether the repeal takes effect before or after argument of the„ appeal.” *Ex parte McCardle,*7 Wall. 506, 515. In a later case, after a suit had been commenced to restrain the construction of a bridge across the Mississippi river at Clim-ton, Iowa, as a nuisance, and after the pleas and replication had been filed and proofs taken, and the case was ready for hearing, congress passed an act declaring the bridge a “lawful structure,” and it was held that the suit was thereby abated. *The Clinton*Bridge, 10 Wall. 454, 462, 463, following the celebrated *Wheeling Bridge Case,*18 How. 439. See, also, *In re*Hall, 167 U. S. 38, 42, 17 Sup. Ct. 723. We must 'hold that ch. 160, Laws of 1903, is a valid enactment, and that effect must be given to its retroactive provisions.

4; This court has recently held:

> “In *quo warranto*brought to oust the defendants from certain village offices, and to obtain judgment declaring the attempted incorporation of the village to be invalid, the village itself should have been joined as a party defendant.” *State ex rel. Weinsheim v.*Leischer, 117 Wis. 475, 94 N. W. 299.

*22We must bold that tbe complaint does not state facts sufficient to constitute a cause of action, and that there is a de-" feet of parties defendant, in failing to make Joint School District No. 4 a party.

*By the Gourt.*— The order of the circuit court is reversed,, and the cause is remanded, with direction to sustain the demurrer to the complaint on the two grounds mentioned.