Board of Education of South Milwaukee vs. State ex rel. Reed. Board of Education of the City of South Milwaukee and others, sued out of the superior court of Milwaukee county upon the relation of George II. Reed. Its object was to compel said board to reinstate him as principal of the high school located in that city, under a school contract with the district hereinafter stated, namely, high school district No. 1 of the city of South Milwaukee, dated July 2, 1897, and to compel the Board of Education of the City of South Milwaukee to recognize and conform to said contract, and to issue and deliver to him orders of the board of education of said city, signed and certified by the secretary of said board, drawn on the city treasurer, directing him to pay out of the school fund in his hands appropriate thereto the sum of $111.11, which became due October 8, 1897, for teachers' salary, and a like further sum which became due him on November 5, 1897. There was a motion to quash the alternative writ on the ground that it appeared from its face that there was a defect of parties defendant, the city of South Milwaukee not being made a party defendant, and that it did not appear that there were funds on hand applicable to the payment of the orders mentioned in the writ, and that the relator had an adequate remedy at law; and, further, that the writ and relation did not state facts sufficient to authorize the issuing of a peremptory writ, or to entitle the relator to the relief therein demanded, or to any relief whatever by mandamus. The motion to quash was denied, and the respondents below then made return to the alternative writ, to which the relator demurred, upon the ground that the same did not state facts sufficient to constitute a defense. The demurrer was sustained, with leave to the respondents below to amend their return as they might be advised, and, in default of such amendment and proof thereof, a peremptory writ should issue as prayed for, and judgment should go thereon conformably to law and the practice of the court. The respondents failed to amend their return, and judgment was Board of Education of South Milwaukee vs. State ex rel. Reed. entered ordering and adjudging that a peremptory writ issue commanding the respondents to reinstate the said relator, George H. Reed, as principal of the high school of high school district No. 1 of the city of South Milwaukee, under his said written contract as such principal entered into and made by him with the late high school board of said high school district, bearing date July 2d, and that they recognize and conform with said contract thereafter, and issue to him the said orders for the moneys claimed to be so due and owing on said contract. This writ of error is sued out to review said judgment. It appears from the record: (1) School district No. 1 of the town of Oak Creek, Milwaukee county, was organized prior to 1890, comprising territory which now composes about the east two-thirds of the city of South Milwaukee, and lying wholly within the limits of said city. (2) In 1890, by proceedings taken under sec. 490, R. S. 1878, the district became a free high school district. (3) The district, in 1872, acquired certain land for a school site, and built a school-house thereon, which, since 1890, has been used as a high school and common school; the affairs of the district, the management of the school, and the appointment of teachers being under, and made by, the high school board of the district, down to the incorporation of the city of South Milwaukee, July 6, 1897, and, in fact, down to the election and qualification of the board of education of such city, September 4, 1897. (4) June 29, 1897, the duly elected high school board of said district appointed George H. Reed as principal of the school for the then ensuing year, commencing September 13th, and on July 2, 1897, entered into a written contract with him to teach said school as principal for such ensuing year, at $1,000 per annum, salary to be paid at the end of each month, in the sum of $111.11, for the school year of nine months. Board of Education of South Milwaukee vs. State ex rel. Reed. (5) July 6, 1897, the annual school meeting of the said high school district was held, at which the period of the ensuing school year was fixed at nine months. July 7, 1897, the high school board met and ratified the acts of its predecessor in appointing teachers. (6) On the 6th of July the city of South Milwaukee received a patent from the state incorporating it as a city of the fourth class, and its incorporation became thereby perfected on that day by the issue of said patent. Laws of 1897, ch. 287, sec. 98. September 1, 1897, its common council, proceeding under sec. 3, ch. 380 (p. 1032), Laws of 1897 [sec. 925-113, Stats. 1898], determined by ordinance that the members of the board of education of the city should be elected by the common council. On September 4, 1897, the council elected such members, who on that day qualified and organized. (7) The board of education, at its first meeting, passed a resolution to the effect that it would not recognize the appointments or contracts of the high school board, and directed its secretary to notify the teachers of such action. September 11th the board of education reappointed all teachers of the said school in all its departments save Mr. Reed, the relator, and fixed the opening of the school for September 13th. September 13th Mr. Reed attended at the school pursuant to his appointment, and under his said school contract for the school year, and on that day opened and organized the school, and taught that day. Before the hour of opening school on the following day, September 14th, he was served with a restraining order obtained in a suit brought in the superior court of Milwaukee county by the board of education, in the name of the city, against him and others, enjoining them from entering upon the school grounds, and requiring them to show cause why an injunction to that effect should not issue. This motion for an injunction was, October 30, 1897, denied as to Mr. Reed, on the ground that Board of Education of South Milwaukee vs. State ex rel. Reed. his school contract was valid and binding on the board of education as the successor of the said high school board, by virtue of the incorporation of the city under the general city charter law of 1897 (ch. 287, sec. 98). (8) September 29, 1897, the board of education made a contract with one J. E. Roets as principal of such school, and placed him in charge thereof, and, notwithstanding the said decision of the court of October 30th, and the fact that Mr. Reed had, to the knowledge of said board, been at all times ready to carry out his said contract, the board of education refused to recognize his contract in any way, but persisted in excluding him from the school and retaining Mr. Roets as principal. The judgment recited the making of the contract with the relator, Reed, a teacher legally qualified to teach school in said district, for the term of nine months, for the sum of $1,000, the term commencing on the 13th day of September, 1897, to be paid at the end of each month, in the sum of $111.11; and that the city of South Milwaukee had been incorporated July 6, 1897, as a city of the fourth class; and that September 4, 1897, the common council of said city duly elected a board of education of said city, and said board was organized the same day; and that, disregarding its duty, September 14, 1897, said board caused the said George H. Reed to be removed from said school, and prevented, and still prevents, him from entering into the same, and from discharging and fulfilling his duties under said contract, although said petitioner has at all times been ready and willing to perform such duties, to the knowledge of said board; and also recited the fact that the sum of money claimed by him had become due and payable; that it, the said board, unjustly refused to reinstate the said Reed in his said position as principal of said school, or to issue to him the said orders, to his injury, etc. The peremptory writ was issued May 7, 1898, pursuant Board of Education of South Milwaukee vs. State ex rel. Reed. and in substance according to the judgment so rendered. To this judgment the respondents, the Board of Education of the City of South Milwaukee, and Dennis Sweeney, as secretary of said board, sued out the present writ of error. For the plaintiffs in error there was a brief by Joseph G. Davies, attorney, and David S. Rose, of counsel, and oral argument by Mr. Rose. For the defendant in error the cause was submitted on a brief by Jared Thompson, Jr. To the point that mandamus would lie in this case, he cited Joint Free High School Dist. v. Green Grove, 77 Wis. 532; State ex rel. Van Vliet v. Wilson, 17 id. 687; State ex rel. Stanley v. Van Siclen, 43 Hun, 537; Gilman v. Bassett, 3 Conn. 298; Morley v. Power, 5 Lea, 691; Thompson v. Board of Education, 57 N. J. Law, 628; Butcher v. Charles, 95 Tenn. 532; People ex rel. Devery v. Martin, 13 Misc. (N. Y.), 21; State ex rel. Burpee v. Burton, 45 Wis. 150; State ex rel. Gill v. Common Council of Watertown, 9 id. 254, 258. PINNEY, J. The relations, duties, and obligations that existed between the relator, Reed, and the high school board of high school district No. 1 of South Milwaukee were purely and strictly of a contractual character. This is clearly apparent from the written contract between the parties contained in the record. Butler v. Regents of University, 32 Wis. 131. The high school board consisted of three persons, who were, respectively, director, treasurer, and clerk of the said district. On the 29th of June the board, at a regular meeting, appointed the relator principal of the said school for the ensuing year, at a salary of $1,000, and on the 2d of July made and entered into said contract with him, the validity of which is vigorously contested between the parties. Proceedings had been initiated by the trustees of the village of South Milwaukee looking to the organization of the said village as a city of the fourth class by the name of |