#### State ex rel. Harley, Appellant, vs. Lindemann and others, Respondents. Same, Respondent, vs. Same, Appellants.

*February 23*

May *21, 1907.*

Quo warranto: *"Who may bring action to oust school directors: Constitutional law: Special legislation: Classification of cities: School officers, by whom to be elected or appointed.*

1. XJnder sec. 3466, Stats. (1898), a citizen, resident, elector, property owner, and taxpayer of a city, who has children in the city public schools and a direct and pecuniary interest in the mat*48ter, may bring an action in the name of the state on his Own complaint to oust persons assuming to act as the board of school directors of that city.

2. Ch. 273, Laws of 1905, providing that the public schools in every city of the first class shall be under the general management and control of a board of twelve school directors chosen from the city at large,' is not unconstitutional on the ground that it is special legislation or that it is an improper classification of cities.

3. Ch. 273, Laws of 1905, providing for the appointment by the circuit judges of members of the board of school directors in every city of the first class until their successors should be elected, is in contravention of sec. 9, art. XIII, Const., in that it takes from the electors of the city the right to elect such members and confers the power to appoint them upon persons who are not authorities of the city.

Appeals from an order of tbe circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.

*Affirmed in part; reversed in part.*

Tbe relator, as citizeu, resident, property owner, and taxpayer in tbe city of Milwaukee, and as a father of children who are pupils in tbe public schools of that city, brings this action in tbe name of the state to oust tbe twelve defendants, assuming to act as and for tbe board of school directors of tbe city of Milwaukee, and who were appointed as such under and by virtue of and pursuant to ch. 273, Laws of 1905, by tbe then three judges of tbe circuit court of tbe Second judicial circuit, composed of tbe county of Milwaukee alone, and to have said defendants and all of them adjudged guilty of usurping, intruding into, and unlawfully bolding said office as members of tbe said board of school directors for said city, and to have them and each of them excluded from acting as members of said board and tbe privileges and franchises thereof. To tbe complaint in said action tbe defendants, except *Thomas J. Teretes,*demurred, and assigned eight specific grounds of demurrer, the first seven of which relate to tbe jurisdiction of tbe court, the capacity of tbe relator to maintain tbe action, and defect of parties, all of which were overruled by tbe court, and from that part of tbe order overruling *49tbe same tbe defendants referred to appeal. Tbe eigbtb ground of demurrer specified is that tbe complaint does not state facts sufficient to constitute a cause of action, and tbe same was sustained by tbe court, and from that part of tbe order sustaining tbe same tbe plaintiff appeals. ;

*A. G. Urnhreit,*for tbe plaintiff.

Eor tbe defendants there was a brief by *John T. Kelly*and *Benjamin Poss,*attorneys, and *James G. Jenkins,*of counsel, and tbe cause was argued orally by *Mr. Poss.*They contended, *inter alia,*that sec. 3466, Stats. (1898), authorizing tbe action to be brought by a private person, should be construed to give such right only to a person claiming tbe office in question. It was not tbe legislative intention to enable private persons to interfere with purely public rights, over which tbe state bad control, and in which tbe private person has no special interest, other than that common to all members of tbe community. High, Extr. Leg. Rem. § 700; *Comm, ex rel. McLaughlin v. Cluley,*56 Pa. St 270; *Vrooman v. Michie,*69 Mich. 42; *State ex rel. Glenn v. Stein,*13 Neb. 529, 14 N. W. 481; *Linden L. Go. v. Milwaukee E. B. & L. Go.*107 Wis. 493; *People ex rel. Jones v. N. G. B. Go.*88 HI. 537; *State ex rel. Wetzel v. Tracy,*48 Minn. 497, 51 N. W. 613; *Lob-insón v. Jones,*14 Ela. 256. School directors are not city officers, within tbe meaning of tbe second sentence in sec. 9, art. XIII, Const., but come within tbe designation “all other officers,” etc., in tbe third sentence of that section; and therefore that section is not infringed by tbe act in question.

Tbe following opinion was filed March 19, 1907:

Oassoday, C. J.

1. Tbe appeal on tbe part of tbe defendants brings before us for review tbe question whether this action can be maintained by tbe relator in tbe name of tbe state. Tbe statute applicable declares:

> “An action may be brought by tbe attorney general in the name of tbe state, upon bis own information or upon tbe com*50plaint of any private party, against tbe parties offending: ... (1) When any person shall usurp, intrude into or unlawfully hold or exercise any public office, civil or military- . . . Such action may be brought in the name of the state *by a private person*on his own complaint when the attorney general refuses to act *or when*the office usurped *pertains*to a county, town, city, village or *school*districtSec. 3466, Stats. (1898).

It is admitted by the demurrer that the relator is a citizen and resident of the city of Milwaukee; that he is of full age and an elector of that city; that he is a property owner and taxpayer of that city, and that he hás children who are pupils in the public schools of that city; and that he has a direct and pecuniary interest -in the matters and things alleged in the complaint. There can be no question but that the offices alleged to have been usurped are public offices and pertain to the city of Milwaukee and the public schools therein, within the meaning of the statute quoted. Upon the facts thus admitted it is well settled that the relator may rightfully maintain this action in the name of the state. *State ex rel. Ackerman v.*Dahl, 65 Wis. 510, 27 N. W. 343; *State ex rel. Nelson v.*Mott, 111 Wis. 19, 22, 86 N. W. 569; *State ex rel. Heim v.*Williams, 114 Wis. 402, 90 N. W. 452; *Fordyce v. State ex rel.*Kelleher, 115 Wis. 611, 92 N. W. 430; *State ex rel. Weinsheim v.*Leischer, 117 Wis. 475, 477, 478, 94 N. W. 299.

2. The eighth ground of demurrer is that the complaint does not state facts sufficient to constitute a cause of action. In deciding that question the trial judge stated that it called “for a decision upon the constitutionality of ch. 273, Laws of 1905 ;” that he “believed said act to be unconstitutional, but that because of the existence of a reasonable doubt... as to the correctness of such opinion,” he would treat the act as a valid law and sustain the demurrer on that ground. The act in question purports to place “the public schools in every city of the first class” (Milwaukee) “under the general, manage*51ment, control, and supervision of a board of school directors, consisting of twelve members from the city at large, selected” as therein provided. Sec. 1, ch. 273, Laws of 1905. The act further provides that before July 1, 1905, “the circuit judges of the judicial circuit in which such city is situated shall meet, and shall appoint twelve members of the board of school directors,” to hold their respective offices for the periods therein prescribed. Sec. 3, ch. 273, Laws of 1905. The manifest purpose of the act was to take the public schools of the city of Milwaukee out from under the control of the city and place them “under the general management, control, and supervision of a board of school directors” appointed as indicated. The validity of the enactment is assailed on several grounds. We perceive no good reason for holding the act unconstitutional on the ground that it is special legislation or that it is an improper classification of cities.

The constitution declares:

> “All county officers whose election or appointment is not provided for by this constitution shall be elected by the electors of the respective counties, or appointed by the boards of *supervisors or oilier county authorities,*as the legislature shall direct. *All city, town and village officers*whose election or appointment is not provided for by this constitution shall be elected *by the electors of such cities,*towns and villages, or of some division thereof, *or appointed by such authorities thereof*as the legislature shgll designate for that purpose.” Sec. 9, art. XIII, Const.

In construing these provisions of the constitution this court held, long ago, that “all village officers must be elected by the electors of the village, or appointed by some village authority.” Co*le v. Black River Falls,*57 Wis. 110, 118, 14 N. W. 906. In the opinion of the court by Mr. Justice Taylob in that case it is strongly intimated, if not held, that such power of appointment could not be vested in any village authority which had not been brought into existence by an election by the electors of the village. In a later case it was. held that an *52act of tbe legislature attempting to extend tbe term of office of tbe city attorney of Milwaukee from two to four-years was void; and it was there said by tbe late Justice íTiwmaií, speaking’for tbe whole court, that:

> “Tbe words of tbe provision are so plain, -and its intention is so obvious, that it does not seem to admit of construction. Tbe idea which tbe words express on their face is tbe law. All city officers must be elected by tbe electors of tbe city, or they must be appointed by some officer or other authority of tbe city which has been theretofore designated by the legislature for that purpose.” *State ex rel. Hamilton v. Krez,*88 Wis. 135, 138, 59 N. W. 593.

This court has more recently held that the provision of the constitution quoted “prohibits the legislature from interfering in any way with the question of what person shall hold any office in any city in this state of a character known at the time of the adoption of the constitution, *whether'then Tcnown*by the same name as subsequently or not, and limits all power in that regard to tbe electors of tbe particular locality interested, to be exercised directly or by some municipal agency selected directly or indirectly by them.” *O'Connor v. Fond du Lac,*109 Wis. 253, 264-269, 85 N. W. 327, citing numerous New York cases, from which state that constitutional provision was borrowed. See, also, *State ex rel. Jameson v. Denny,*118 Ind. 382, 405, 21 N. E. 252; *State ex rel. Perry v. Arrington,*18 Nev. 412, 4 Pac. 735. It is conceded, in effect, that prior to the adoption of the constitution the city charter of Milwaukee placed the several common schools therein under the general' control and supervision of a school board of education. Tbe applicability of the constitutional provision quoted to the case at bar is not questioned. In plain disregard of that constitutional provision and the decisions of this court construing the same, the act in question not only undertook to take from the electors of the city the right to elect the members of their school board of education, *53but also to take from tbe authorities of the city the right to appoint the members of such board. The question is no.t whether the circuit judges would make wise appointments to such offices, but whether they could be constituted “such authorities” of the city to malee any appointment to such offices. They certainly are not municipal officers and are not to be made adjuncts of the city government. The constitution only authorized the appointment of such officers “by such authorities” of the city as the legislature should designate for that purpose. The appointment of such school board was outside of and foreign to the exercise of any judicial function. Whether such duties can be constitutionally imposed on circuit judges is a grave question which is not now decided. The question whether the act is wholly void or only partially void is a grave question, which has not been argued and is not determined. In holding the act unconstitutional on the ground stated no municipal confusion need result, since the legislature is in session and a valid substitute for this defective statute can be readily enacted. It is unnecessary to consider other questions discussed by counsel.

*By the Court.*— The portion of the order of the circuit court from which the defendants appealed is affirmed, and the portion of the order from which the relator appealed is reversed, and the cause is remanded for further proceedings according to law. But one bill of costs to be taxed in favor of the relator in this court.

Upon a motion for a rehearing, the respondents cited, to the point that school directors are not city officers, *State ex rel. Clark v. Haworth,*122 Ind. 462, 23 N. E. 946; *Hall v. Madison, 1*28 Wis. 132; *Belles v. Burr,*76 Mich. 1; *T. B. Scott L. Co. v. Oneida Co.*72 Wis. 158, 161.

The motion was denied May 21, 1907.