Dorner v. School District No. 5

.Dodge, T.

But two questions arise upon this appeal, and they rather narrow ones. The very important questions as to what acts may constitute the giving or allowing sectarian instruction such as is prohibited in public schools by sec. 3, art. X, Const., and whether the acts done in the instant case .are within that inhibition, are treated in an able and exhaust *150 ive opinion by the trial court, but are not presented by the appeal. We are therefore to start with the fact that for nearly twenty years the school officers have annually paid school district moneys for support of a school where sectarian instruction was permitted. The question whether such payments, were so unlawful that the school district, as a corporation, might maintain an action at law to recover them back from the recipients, or for damages against the district officers and their confederates for dissipating the school funds, was not decided, but affirmative answer was hypothetically assumed by the trial court, as also that the district will not bring any such action.

The right of a member of a corporation to invoke the interference of a court of equity to practically coerce the reluctant, corporation to enforce its legal rights against its officers and their confederates is abundantly established by our decisions. Frederick v. Douglas Co. 96 Wis. 411 , 71 N. W. 798 ; Webster v. Douglas Co. 102 Wis. 181 , 77 N. W. 885 , 78 N. W. 451 ; Northern T. Co. v. Snyder, 113 Wis. 516 , 89 N. W. 460 . But, since the application must be to a court of equity, equitable considerations will guide and control in granting or withholding relief. The court will not coerce the-enforcement of a strict legal right, however clear, if thereby injustice and inequity will be done. In development of this, rule it is well settled that a court of equity may and should refuse to upset consummated and completed transactions to the hurt of those who have acted in good faith at the suit of plaintiffs who, by laches or failure to protest upon opportunity before the acts were done, have induced or justified belief that they acquiesced in and approved such acts. Helms v. McFadden, 18 Wis. 191 ; Cross v. Bowker, 102 Wis. 497 , 78 N. W. 564 ; Frederick v. Douglas Co. 96 Wis. 411, 425 , 71 N. W. 798 ; McCann v. Welch, 106 Wis. 142, 151 , 81 N. W. 996 . This rule was applied by the circuit court, who found as facts that plaintiffs and all other taxpayers had been. *151 cognizant of the manner of conducting the-school, and that the electors of .the district each year had been informed that the money had been spent for such purpose, and, without protest from any, at each meeting directed like expenditures for the ensuing year. Such finding is not antagonized by any clear preponderance of evidence. On the faith of such acquiescence, believing that all taxpayers approved, the defendant officers have parted with the money, and, quite obviously, must lose it if compelled to reimburse the district. These plaintiffs at least cannot equitably ask that the defendants so suffer for acts induced and invited by plaintiffs’ own conduct.

2. We find no error in the trial court’s refusal to enjoin the district and board from maintaining a common school in the parochial school building. Incidentally it may be1 noted that there is no prayer for such specific relief, but the: court considered the question, and we will not rest upon that defect in the pleadings. Inferentially, at least, every school district is commanded to maintain a common school, for it shall be put out of .existence if it does not. Sec. 423, Stats. (1898). True, this district owns a schoolhouse, twenty-eight feet by eighteen, which is obviously wholly inadequate for a common school free to all the 200 or more scholars of the district. Non constat anything in the record or evidence it may be wholly unable to construct a more commodious one. The school district has express power to vote a tax to hire a schoolhouse. Subd. 5, sec. 430, Stats. (1898). The school board are empowered, when directed by the electors, in the alternative to purchase or lease a site for a schoolhouse and to-build, hire, or purchase a schoolhouse and to sell and convey any site for schoolhouse, the property of the district. Sec. 430, Stats. (1898). We find nothing either in the expression or policy of the statutes to prevent the school district in meeting assembled or the school board from hiring a building or part of a building in which to maintain the public school, not *152 even though the district may already bave a scboolbonse and the hiring may be by way of accommodation for overflow in excess of the accommodations of the schoolhouse so owned. Hence we think that the affirmative grant of powers above mentioned, fairly and reasonably construed, is sufficient to enable the district to maintain a common school in the parochial school building and its discretion in that regard should not be controlled by the court.

We are convinced that in the respects assailed by appeal the judgment is correct.

By the Court. — Judgment affirmed.