#### Schmidt and others, Appellants, vs. Joint School District No. 4 of the Town of Herman and the Village of Gresham, and others, Respondents.

*September 12*—

October *3, 1911.*

(1, 4, 5) *Pleading: Demurrer: Decision: Facts stated according to■ legal effect: Intendment in favor of complaint.*(2, 3) *Municipal corporations: Restraining illegal expendieres: Taxpayers’ action: School districts: Building school house.*

*1.*A decision upon' demurrer should not be for judgment and for costs, but should he with leave to plead over upon condition of' paying ten dollars costs.

2. Where there is imminent danger of public money being illegally expended by the officers of a municipal corporation, taxpayers-of such municipality, acting seasonably, may maintain a suit in equity to prevent such expenditure.

*6363. If the electors of a school district, duly assembled at a special meeting for that purpose, pass unfavorably upon a proposition to build a school house, and later, within a year, at a second meeting determine to the contrary, the latter is illegal and a taxpayers’ action will lie to prevent carrying it out.

4. Matters of mixed law and fact, the ultimate of which is, in a broad sense, a fact, may be pleaded according to their legal effect.

■5. In testing a complaint upon challenge for insufficiency every fact, necessary to entitle the plaintiff to some judicial relief within the competency of the court to grant, which can be reasonably inferred from the language used, giving thereto, as a whole, the broadest meaning in favor of the pleading it will reasonably bear, should be considered to be as efficiently stated as matters expressly and plainly alleged.

[Syllabus by Marshall, J.]

Appeal from an order of tbe circuit court for Sbawano •county: JohN GooklaNd, Circuit Judge.

*Reversed.*

Taxpayers’ action to restrain alleged threatened misuse of public money and other alleged prejudicial acts of public officers.

By appropriate allegations, facts were stated showing competency of plaintiffs to maintain the action, if the alleged threatened acts are properly preventable in a taxpayers’ action, and the requisite status of defendants to render them proper parties in such a case. The substance of the complaint •otherwise is as follows: July 15, 1910, at 8 o’clock p. m., a ■special meeting “was called pursuant to notice duly given, of all the legal voters of said school district for the purpose of determining the question of building a new school house, and raising money for that purpose and for selecting a site.” At such meeting “it was determined by the legal voters present” not to build a new school house. July 28, 1910, the district school clerk called a second special meeting of the voters of the district to be held on the 4th day of August, 1910, at 2 o’clock p. m., to consider whether a new school house should be built. A meeting was held accordingly, and, thereat, by a majority *637vote, tbe question was decided in tbe affirmative — sufficient women voting tbat way to bring about sucb result — and it was. decided to borrow $700 to effect it. At sucb meeting, defendants *Mader, Schroeder,*and *Holm*were elected as a building committee to confer witb tbe school board in procuring a. school site, advertising for bids, letting contracts for construction of tbe proposed building, and to generally attend to tbe construction, witb power to incur indebtedness of tbe district to that end. Tbe proceedings at sucb second meeting are illegal, because of tbe identical question submitted having been passed upon of whether to build a new school bouse, at said July 15th meeting, and because separate ballots were not provided for women, as provided by cb. 285, Laws of 1901. The' district clerk called a third special meeting for August 27, 1910, to consider, as before, tbe subject of building a new school bouse, and raising money to tbat end. Unless restrained by tbe court, defendants will carry out tbe aforesaid determinations made subsequent to tbe meeting of July 15,, 1910, respecting tbe building of a new school bouse. The-pleading closed witb an appropriate prayer for relief.

Defendants demurred for want of jurisdiction of tbe subject matter of tbe action, want of jurisdiction of tbe persons-of defendants, insufficiency generally, and adequacy of tbe remedy at law. Tbe demurrer was sustained — the order in tbat regard providing absolutely for judgment in favor of defendants witb ten dollars costs.»

P. *J. Winter,*for tbe appellants.

*E. V. Werner,*for tbe respondents.

MAR.KTTat,t,; J.

The order is erroneous, if for no other reason, because it provides, absolutely, for judgment in favor of defendants and for ten dollars costs. Tbe court should not have granted costs except as a condition of pleading over, and have allowed reasonable time therefor. See. 2686, ■ Stats. *638(1898); *Curtis v. Moore,*15 Wis. 134; *Schoenleber v. Burkhardt,*94 Wis. 575, 69 N. W. 343; *Bishop v. Aldrich,*48 Wis. 619, 623, 4 N. W. 775; *Schroeder v. Richardson,*101 Wis. 529, 78 N. W. 178; *Case v. Fuldner,*110 Wis. 568, 86 N. W. 163.

Tbe precise supposed infirmity in tbe complaint does not ¡appear. Any one mentioned in tbe demurrer falls within tbe general language of tbe decision. Eor augbt appearing, tbe learned circuit court may have thought tbe complaint faulty upon all such grounds. However, it is so clear that a taxpayers’ action is proper to prevent illegal expenditure by school district officers of public money, also to restrain them from illegally issuing school district obligations to pay money, •or otherwise incurring, good in form, school district indebtedness, and that, in such a case, the district and its officers are proper defendants, we must assume the complaint to have been condemned solely .upon the ground of its not showing, unmistakably, danger of such illegal acts occurring to the prejudice of taxpayers, because of failure to allege, with particularity, the facts showing the meeting of July 15, 1910, to have been legal. Obviously the other questions voted upon •at subsequent meetings were subsidiary to the one as to whether a new school house should be built. If the first meeting was legal, sec. 427 of the Statutes precluded reconsideration of the school house matter for one year, and the subsequent contrary course and threatened action pursuant thereto involved danger prejudicial to taxpayers, remediable in an action of this sort according to the well settled practice.

It is claimed that the mere allegation — “on the 15th day of July, A. D. 1910, at 8 o’clock p. m., a special meeting was called pursuant to notice duly given, of all the legal voters of said school district for the purpose of determining the question of building a new school house, and raising money for that purpose and for selecting a site,” and that the majority *639voted against tbe building of a new school bouse, — is not sufficient to show that tbe school meeting was legally called and held; that all conditions precedent to a legal special meeting for tbe purpose of tbe question alleged to have been passed upon, should have been stated, in detail, to have been satisfied. 'That is wrong. It is contrary to tbe letter and spirit of tbe •Code and tbe settled practice thereunder, as found in a long line of decisions reaching back to *Morse v.*Gilman, 16 Wis. 504.

Matters of mixed law and fact, tbe ultimate of which is, in a broad sense, a fact, may be pleaded according to their legal •effect. *South Milwaukee Co. v. Murphy,*112 Wis. 614, 88 N. W. 583; *Prentice v. Nelson,*134 Wis. 456, 114 N. W. 830. Furthermore, for tbe purpose of testing a complaint upon a challenge for insufficiency, every fact necessary to entitle plaintiff to some judicial relief within the competency of the court to grant, which can reasonably be inferred from the language used, giving thereto, as a whole, tbe broadest meaning in favor of tbe pleading it will reasonably bear, must be considered as stated just as effectively as matters expressly and plainly alleged. In short, every reasonable intendment must be indulged in in favor of tbe pleading.

Thus tbe court has heretofore spoken repeatedly and decisively,- — too often to require or perhaps even suggest propriety, on this occasion, of emphasizing tbe matter by referring to previous decisions.

Under tbe rule stated, tbe general language of tbe complaint seems ample to show tbe voters of tbe defendant district to have legally passed upon tbe school bouse matter at the first mentioned meeting, and, contrary, to law, subsequently and within a year thereafter, to have passed upon tbe same matter ,at another, or other such meetings, and imminent danger of action by respondents pursuant thereto, incurring school district indebtedness, good in form, and depleting the district *640treasury to tbe prejudice of taxpayers. So it seems quite-clear tbe trial court erred in bolding tbe complaint insufficient to state a cause of action in favor of tbe plaintiffs as taxpayers, and erred in bolding it bad in any other respect, if sucb bolding occurred.

*By the Court.*— Tbe order is reversed, and tbe cause remanded for further proceedings according to law.