DixoN, O. J.
This case presents two questions, which may be stated thus: 1. Was tbe defendant justified in refusing payment of tbe orders set forth in the alternative writ ? 2. If be was not, are tbe relators tbe proper parties to apply to tbe court for a writ of mandamus to compel him to pay them ?
Tbe answer to tbe first question depends on tbe validity of so much of section 1, chap. 348, Private and Local Laws of 1867, as sets apart and retains in tbe treasury of tbe city of Oshkosh, or attempts so to do, tbe sum of ten thousand dollars out of tbe tax levied in tbe year 1866 under the authority conferred by chapter 236, Private and Local Laws [665] of 1866, entitled “ An aet to authorize the board of education of the city of Oshkosh to levy a tax to build a school house,” which said sum of ten thousand dollars, so to be set apart and retained, was to be paid out as the purchase money for the site for a normal school in said city, to be selected and the title approved and accepted by the board of regents of normal schools. The tax levied in the year 1866, of which this sum of ten thousand dollars was a portion, was, in the words of the act by which it was authorized, levied “ to be used for the purpose of erecting a suitable high school building in said city.” It was lawfully so levied. It is true that the board of education of the city of Oshkosh, under whose direction the levy was made, were authorized to raise a portion of the sum or sums specified in the 6th section of the act “ for the purpose of aiding in the establishment of a state normal school in said city.” This authority was, however, purely discretionary; and as the board of education saw fit not to raise any money for that purpose, the inquiry is the same as if no such authority had been conferred. The question then is : "Was it competent for the legislature, without the assent of the city or its inhabitants, thus to divert the funds raised and in the hands of the treasurer for the purpose of erecting a suitable high school building, and to declare that they should be appropriated, not for that purpose, but for the purpose of purchasing the site for a state normal school in the city ? "We are .clearly of opinion that it was not. It is well settled as to all matters pertaining to vested rights of property, whether real or personal, and to the obligation of contracts, that municipal corporations are as much within the protection of the federal constitution as private individuals are. The legislature cannot divest a municipal corporation of its property, without the consent of its inhabitants, nor impair the obligation of a contract entered into with or in [666] bebalf of sucb corporation. See Milwaukee v. Milwaukee, 12 Wis., 93, and authorities cited. What was the act in question but a most obvious attempt, at the mere will of the legislature, to deprive the city of Oshkosh of so much money lawfully acquired for a proper municipal purpose, and, without the assent of the inhabitants, to apply it to another purpose, not municipal, but one in which all the people of the state have a common interest ? Clearly no other effect can be given to it. A state normal school, as its name indicates, is a state institution established for the benefit of the people of the entire state and maintained by funds provided by the state. This will readily appear from an examination of the several statutes under which those schools are organized, and which prescribe the powers and duties of the board of regents of the same. R. S., ch. 22; Raws of 1859, ch. 94; Laws of 1865, ch. 537; Laws of 1866, ch. 116. The regents are appointed by the governor by and with the approval of the senate, and the title of the lands, buildings, furniture, books, apparatus and all other property and effects, is vested in the board, which has the exclusive management and control of the same. To say, therefore, that the legislature can, without the assent of the proper municipal authorities or of the inhabitants, take the money of the city of Oshkosh and appropriate it to the establishment of a state normal school, is to say that it can take the money of any municipal corporation and apply it to any general state purpose. If the act had directed the money in question to be deposited in the state treasury as part of the general ■ fund belonging to the state, or had appropriated it toward the completion of the state capital now in process of construction, the violent nature of the proceeding might have been more manifest, but it would not have been more unauthorized. The advantages incidentally accruing to the citizens of Oshkosh from the es-[667] tablisliment of a state normal school at that place, though sufficient, with the consent of the legislature, to justify the citizens themselves, or the proper municipal officers, in levying a tax to aid in the purchase of a site or the erection of buildings, do not change the nature of the question here presented. The tax so levied must be with the assent of the citizens or proper city officers. The legislature has no power arbitrarily to impose such a tax, as that would not only be in plain conflict with the rule of uniformity in taxation prescribed by the constitution, but contrary to the general principles of law govei’ning such proceedings. If, therefore, the legislature cannot impose a tax for such a purpose, it follows that it cannot for the same purpose arbitrarily appropriate the money of the city already lawfully raised by taxation for another. As well might the legislature, without the assent of the city, appropriate the high school building itself, after its completion, for a state normal school, as seize the funds provided by the city for the,purpose of erecting it. This, we think, would be regarded by every one as wholly unjustified by any sound principle of legislation — a mere act of lawless violence. The act in question, though the injustice of it may not be quite so apparent, in reality stands on no better foundation. tr
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DixoN, O. J.
This case presents two questions, which may be stated thus: 1. Was tbe defendant justified in refusing payment of tbe orders set forth in the alternative writ ? 2. If be was not, are tbe relators tbe proper parties to apply to tbe court for a writ of mandamus to compel him to pay them ?
Tbe answer to tbe first question depends on tbe validity of so much of section 1, chap. 348, Private and Local Laws of 1867, as sets apart and retains in tbe treasury of tbe city of Oshkosh, or attempts so to do, tbe sum of ten thousand dollars out of tbe tax levied in tbe year 1866 under the authority conferred by chapter 236, Private and Local Laws [665] of 1866, entitled “ An aet to authorize the board of education of the city of Oshkosh to levy a tax to build a school house,” which said sum of ten thousand dollars, so to be set apart and retained, was to be paid out as the purchase money for the site for a normal school in said city, to be selected and the title approved and accepted by the board of regents of normal schools. The tax levied in the year 1866, of which this sum of ten thousand dollars was a portion, was, in the words of the act by which it was authorized, levied “ to be used for the purpose of erecting a suitable high school building in said city.” It was lawfully so levied. It is true that the board of education of the city of Oshkosh, under whose direction the levy was made, were authorized to raise a portion of the sum or sums specified in the 6th section of the act “ for the purpose of aiding in the establishment of a state normal school in said city.” This authority was, however, purely discretionary; and as the board of education saw fit not to raise any money for that purpose, the inquiry is the same as if no such authority had been conferred. The question then is : "Was it competent for the legislature, without the assent of the city or its inhabitants, thus to divert the funds raised and in the hands of the treasurer for the purpose of erecting a suitable high school building, and to declare that they should be appropriated, not for that purpose, but for the purpose of purchasing the site for a state normal school in the city ? "We are .clearly of opinion that it was not. It is well settled as to all matters pertaining to vested rights of property, whether real or personal, and to the obligation of contracts, that municipal corporations are as much within the protection of the federal constitution as private individuals are. The legislature cannot divest a municipal corporation of its property, without the consent of its inhabitants, nor impair the obligation of a contract entered into with or in [666] bebalf of sucb corporation. See Milwaukee v. Milwaukee, 12 Wis., 93, and authorities cited. What was the act in question but a most obvious attempt, at the mere will of the legislature, to deprive the city of Oshkosh of so much money lawfully acquired for a proper municipal purpose, and, without the assent of the inhabitants, to apply it to another purpose, not municipal, but one in which all the people of the state have a common interest ? Clearly no other effect can be given to it. A state normal school, as its name indicates, is a state institution established for the benefit of the people of the entire state and maintained by funds provided by the state. This will readily appear from an examination of the several statutes under which those schools are organized, and which prescribe the powers and duties of the board of regents of the same. R. S., ch. 22; Raws of 1859, ch. 94; Laws of 1865, ch. 537; Laws of 1866, ch. 116. The regents are appointed by the governor by and with the approval of the senate, and the title of the lands, buildings, furniture, books, apparatus and all other property and effects, is vested in the board, which has the exclusive management and control of the same. To say, therefore, that the legislature can, without the assent of the proper municipal authorities or of the inhabitants, take the money of the city of Oshkosh and appropriate it to the establishment of a state normal school, is to say that it can take the money of any municipal corporation and apply it to any general state purpose. If the act had directed the money in question to be deposited in the state treasury as part of the general ■ fund belonging to the state, or had appropriated it toward the completion of the state capital now in process of construction, the violent nature of the proceeding might have been more manifest, but it would not have been more unauthorized. The advantages incidentally accruing to the citizens of Oshkosh from the es-[667] tablisliment of a state normal school at that place, though sufficient, with the consent of the legislature, to justify the citizens themselves, or the proper municipal officers, in levying a tax to aid in the purchase of a site or the erection of buildings, do not change the nature of the question here presented. The tax so levied must be with the assent of the citizens or proper city officers. The legislature has no power arbitrarily to impose such a tax, as that would not only be in plain conflict with the rule of uniformity in taxation prescribed by the constitution, but contrary to the general principles of law govei’ning such proceedings. If, therefore, the legislature cannot impose a tax for such a purpose, it follows that it cannot for the same purpose arbitrarily appropriate the money of the city already lawfully raised by taxation for another. As well might the legislature, without the assent of the city, appropriate the high school building itself, after its completion, for a state normal school, as seize the funds provided by the city for the,purpose of erecting it. This, we think, would be regarded by every one as wholly unjustified by any sound principle of legislation — a mere act of lawless violence. The act in question, though the injustice of it may not be quite so apparent, in reality stands on no better foundation. tr
2. Are the relators the proper parties to apply for this writ? "We think not. The object of the writ is to compel the respondent, who is the treasurer of the city, to pay two orders for the sum of $100 each, drawn by the relators, the board of education of the city, in favor of one Alger, a contractor on the high school building, and delivered to him, which orders, now in the possession of and belonging to Mr. Alger, have been presented by him to the defendant, and payment demanded and refused. These, with the further averment that the defendant has money in his hands [668] with, which he ought to have paid the orders, constitute all of the material allegations of the writ. The other matters stated, though very useful to show the embarassments of the board of education caused by the respondent’s withholding money due upon its orders, are wholly irrelevant to the real cause of action set forth, which is the improper refusal to pay the sum of $200 to Mr. Alger. The embarassments of the board constitute no ground for issuing the writ, or reason why the members should interfere to compel the payment of money to a third person, in which they have no actual interest. The board parted with all its interest in the money on issuing the orders; and if the holder of the orders sees fit to acquiesce in the respondent’s refusal'to pay them, or not to institute proceedings to compel their payment, as he might do, no reason is perceived why the board should complain. As already observed, the obstacles thrown in the way of the future operations of the board by the refusal of the respondent to pay its orders, should he persist in so doing, constitute no ground in law for issuing the writ. It is only upon the clear legal right to have the orders already issued paid, that the writ can be granted; and for the violation of that right, it is well settled that the application must be by the real pai’ty in interest. The case in this respect differs entirely from that of The State ex rel., etc., v. City of Cincinnati et al., 19 Ohio, 178, and others cited by counsel, where the relators had not parted with their interest in the funds by the issuing and delivery of proper orders, but where the proceedings were instituted against other officers to compel them to perform certain duties in order to enable the relators to obtain control of funds to which by law they were entitled.
By the Court. — Order reversed.