#### School District No. 11 of the Town of Madison, Appellant, vs. Clifcorn and another, Respondents.

*September 3*

November *26, 1907.*

*Schools and school districts: Director: Duties: School district meetings: Control of actions: Statutes: Construction: Dismissal and nonsuit: Voluntary dismissal: Discretion of court: Appeal and' error: Dismissal of appeal.*

1. Under the provisions of see. 442, Stats. (1398), malting it the duty of the director of a school district “to cause an action to he prosecuted in the name of the district on the treasurer’s bond in case of any breach of any condition thereof,” the director has the power to commence and prosecute an action upon the treasurer’s bond without waiting for a meeting .of the school district, and the reservation of power to the district meeting given by subd. 17, sec. 430, Stats. (1898), “to give such direction and make such provision as may be necessary in relation' to the prosecution or defense of any action or proceeding in which the district may be a party or may be interested,” is not inconsistent with such power given the director.

2. In such case the school district meeting has power, subject to control of the court, to dismiss an action on its treasurer’s bond commenced by the school district director.

3. A plaintiff has no such complete control over his action as entitles him to discontinue it at will without leave of the court.

4. Where a plaintiff attempts to discontinue his action the court may in its discretion deny the application, if the rights of the defendant or third parties or the public will be substantially - prejudiced by such discontinuance.

5. In an action by a school district director, in the name of the district, against its treasurer for breach of his bond, it appeared, among other things, that at a special meeting of the district duly called'the treasurer’s accounts had been audited- and resolutions adopted approving such accounts and directing that the action begun by the director be dismissed. No public reasons appeared why the action should proceed further against the wish of the electors. *Meld,*that an appeal from a judgment dismissing the- action should be dismissed.

Appeal from a judgment of the circnit court for Dane county: E. Eat Stevens, Circuit Judge.

*Dismissed.*

*466
      *Geo. W. Bird*and *T. 0. Richmond*in support of tbe motion to dismiss.

*F. M. Miner, contra.*

Tbe following opinion was filed September 24, 1907:

WiNsnow, J.

A joint motion is made by tbe respondents and tbe district board of tbe appellant to dismiss tbe appeal herein. It appeared on tbe bearing of tbe motion that tbe present action is an action at law against tbe district treasurer and bis bondsman, claiming breach of tbe treasurer’s bond, and that tbe action was commenced by tbe director of tbe district in July, 1906; that tbe breaches of tbe bond relied upon were that tbe treasurer bad paid out moneys of tbe district upon orders' not countersigned by tbe director, but which represented legitimate expenditures on behalf of tbe district; that at a special meeting of tbe district duly called in August, 1906, tbe treasurer’s accounts were audited, and a resolution adopted approving tbe treasurer’s accounts and directing that tbe action begun by tbe director be discontinued; that tbe director and bis attorneys refused to discontinue tbe action, but brought it to trial in March, 1907, which trial resulted in a judgment dismissing tbe same; that an appeal was taken to this court in April following; and that at tbe annual meeting of the district held July 1, 1907, a new director was elected and resolutions were unanimously adopted declaring that the treasurer bad misappropriated no moneys, but bad fully accounted for all funds in bis possession, and directing that tbe litigation against him be discontinued -and that tbe new director and tbe district board co-operate in procuring tbe discontinuance. Tbe plaintiff’s attorneys still refusing to dismiss tbe appeal, this j oint motion was made.

It is contended, in opposition to tbe motion, that under tbe statutes the district director has entire control over an action upon tbe treasurer’s bond, and that, even if this be not so, still there are public reasons which should impel tbe court *467to refuse to allow the appeal to be dismissed. The first contention. is based upon the third clause of sec. 442,' Stats. (1898), which makes it the duty of the district director “to cause an action to be prosecuted in the name of the district on the treasurer’s bond in case of any breach of any condition thereof.” This clause, however, must be read in connection with subd. 17, sec. 430, Stats. (1898), which gives the school district meeting power “to give such direction and make such provision as may be necessary in relation to the prosecution or defense of any action or proceeding in which the district may be a party or may be interested.” The two sections should be harmonized if possible, and it does not seem difficult to harmonize them on an entirely reasonable basis. It was doubtless thought advisable that the director should have power to commence and prosecute an action upon the treasurer’s bond without waiting for a meeting of the school district, for the very obvious reason that otherwise the remedy might be either wholly lost or greatly endangered by delay. The reservation of power to the district meeting to give directions and make provisions in relation to the prosecution or defense of any action is not inconsistent with the power given to the director. Both may well stand together; the director’s power to commence an action and prosecute it until the electors of the district give other directions being fully recognized. Indeed, any other construction would seem to be out of harmony with our form of school district government, which closely approaches a pure democracy.

We discover no public reasons why the action should proceed further against the unanimous wishes of the electors.

It is well settled that a plaintiff has no such complete control over his action as will entitle him to discontinue it at will without action by the court, and that the court may in its discretion deny the application for leave to discontinue, if the rights of the defendant or of third parties or the public will be substantially prejudiced thereby *(State ex rel. Milwaukee*
      *468
      *v. Ludwig,*106 Wis. 226, 82 N. W. 158), but we bave discovered no sucb considerations here. See, in this connection, *Stale ex rel. Mitchell v. Decatur,*58 Wis. 291, 17 N. W. 20.

*By the Gourt.*— Appeal dismissed.

A motion by the appellant for a rehearing- was submitted on a brief by *Miner & Elver*for the appellant, a brief by Richmond, *Jackman Swansen*for the respondents, and a brief by *Bird & Gilman*for the district board.

The motion was denied November 26, 1907.