Joint School Dist. No. 10 of Towns of Chimney Rock and Burnside v. Sosalla

• Decision Date: 28 February 1958
• Docket Number: No. 6,6
• Citation: 3 Wis.2d 410,88 N.W.2d 357
• Parties: JOINT SCHOOL DIST. NO 10 of the TOWNS OF CHIMNEY ROCK and BURNSIDE, etc., et al., Appellants, v. Ignatz SOSALLA et al., as the School Board of Joint School Dist.of the City of Independence, etc., Respondents (two cases).
• Court: Wisconsin Supreme Court

Page 357

88 N.W.2d 357

3 Wis.2d 410

JOINT SCHOOL DIST. NO 10 of the TOWNS OF CHIMNEY ROCK and BURNSIDE, etc., et al., Appellants, v. Ignatz SOSALLA et al., as the School Board of Joint School

Dist. No. 6 of the City of Independence, etc.,

Respondents (two cases).

Supreme Court of Wisconsin.

Feb. 28, 1958.

Rehearing Denied May 6, 1958.

Bogue & Sanderson, Portage, for appellants.

Kulig & Kulig, Independence, Fugina, Kostner & Ward, Arcadia, for respondents.

FAIRCHILD, Justice.

The proceedings involved on this appeal were taken under sec. 40.075 (1955) Stats. repealed by Chapter 537, Laws of 1957. Material portions of sec. 40.075 were as follows:

'Territory not in but adjoining a district which holds an annual meeting and operates grades 1 to 12 may be annexed thereto upon a petition therefor presented to the board of such common school district signed by 10 per cent of the electors in such adjacent territory. If the board approves the petition, the matter shall be submitted by said board to a meeting of the electors of said territory held in accordance with the provisions of s. 40.14(2). If a majority of the electors present at said meeting are in favor thereof, said territory shall thereby be annexed. The board shall issue an order to that effect, copies of which shall be filed as provided in s. 40.03(3). * * * Any order of the school board to which attachment is made shall be presumptive evidence of the facts recited therein, and of the validity of all proceedings preliminary thereto.'

1. The standing of petitioners. Defendants challenge the right of the district from which territory is being detached and residents of the territory remaining in the district to test the validity of the instant orders by certiorari. Defendants assert that only persons residing in the annexed areas could properly obtain certiorari.

We conclude, however, that the district has a right to petition for certiorari. It is alleged that the board of the district had been authorized to commence this proceeding by vote of the electors. In State ex rel. Geneva School District No. 1 v. Mitchell, 1932, 210 Wis. 381, 245 N.W. 640, 86 A.L.R. 1361, certiorari was issued on petition of a district from which territory had been detached. The board acted under its general powers, without express authorization by vote at a meeting of the electors. There was a motion to supersede the writ. This court held that bringing a legal action concerning the boundaries of the district was not within the general powers of the board, but also appeared to decide that the district had no interest in the detachment of its territory which it could bring action to protect. In State ex rel. Callahan v. Murphy, 1944, 246 Wis. 310, 16 N.W.2d 834, 836, a district was wholly abolished and appealed from the order doing so. The complete abolition of the district and resulting transfer of its property was considered a distinction from the Geneva case, and the district was permitted to prosecute the appeal. The opinion also pointed out that a district meeting had authorized the board to appeal and stated that this fact was also 'a material difference' from the Geneva case. In Village of Brown Deer v. City of Milwaukee, 1956, 274 Wis. 50, 68, 79 N.W.2d 340, this court decided that a high school district could seek a declaratory judgment whether consolidation of part of its territory with Milwaukee had the effect of annexing that part to Milwaukee for school purposes as well as municipal. In State ex rel. City of West Allis v. Dieringer, 1957, 275 Wis. 208, 81 N.W.2d 533, it was assumed that a district could obtain certiorari to review the action of two municipal boards in detaching territory from the district. In the opinion in Town of Madison v. City of Madison, 1955, 269 Wis. 609, 615, 70 N.W.2d 249, there was an explanation of sec. 66,029, Stats., authorizing a town board to institute action to protect the town against invalid annexation. It was pointed out that a town does have an interest in such a matter because of the adjustments in its affairs which are made necessary when territory is taken from it. The instant annexation performed major surgery on the tax base of the Russel-Vieum district, and it should be permitted to test the propriety of the annexation, at least when authorized by the electors at a district meeting. Sec. 40.22(13), Stats. authorizes the district meeting to 'Direct and provide for the prosecution or defense of any action or proceeding in which the district is interested.'

2. Contiguity of territory annexed. The appeal in case No. 225 can be disposed of by considering one proposition. The petition for the writ alleged that the annexation proceeding 'proposes to take non-contiguous territory and * * * to make non-contiguous territory in the remaining district and to leave at least four islands on non-contiguous territory in the district * * *'

The truth of this allegation is demonstrated by the facts as to areas 2-A, 2-B and 2-C previously set forth. Sec. 40.075 provides for annexation of 'territory not in but adjoining' the district to which it is being annexed. It has been established that territory is adjoining under this section even where the continuity of the territory in two places is made only by corners of annexed tracts touching each other. State ex rel. Badtke v. School Board, 1957, 1 Wis.2d 208, 211, 83 N.W.2d 724. We consider this the minimum of continuity required by the statute. Where a third body intervenes between two tracts, they do not adjoin. Hennessy v. Douglas County, 1898, 99 Wis. 129, 136, 74 N.W. 983. In using words 'territory' and 'adjoining' the legislature indicated no intention that one proceeding under sec. 40.075 could annex several areas, one of which is separated by intervening areas both from the other areas to be annexed and from the district to which they are to be annexed. Because of the complete separation of area 2-C from all other territory involved, we conclude that the order challenged in case No. 225, and the proceeding on which it was based are void and should have been set aside by the circuit court. It is thus unnecessary to decide the further question whether under sec. 40.075 the territory annexed could be so selected as to separate unannexed portions of the district from each other by substantial intervening areas. It is also unnecessary to consider other challenges made by plaintiffs in case No. 225.

3. Plaintiffs raise numerous objections to the orders and proceeding involved in case No. 224. They assert that the petition which initiated the proceeding was so insufficient that the board of the Independence district acquired no jurisdiction to act. They further assert that in several respects the record does not show affirmatively that procedural requirements were complied with. They attack the action of the board in correcting an error in the order entered June 19, and finally assert that sec. 40.075 was unconstitutional.

(a) Sufficiency of petition. Plaintiffs contend that in order to arouse the jurisdiction of the board of the annexing district under sec. 40.075, the petition itself must allege the existence of all the facts which would authorize the annexing board to act under that section. It is clear that the petition does not meet the standards which petitioners contend must be met. The petition is addressed to the Independence district, dated May 31, 1956, describes the lands to be annexed and contains 28 signatures. The body of the petition reads as follows: 'You are hereby requested by the undersigned petitioners and electors in territory adjacent to Jt. School District No. 6 of the City of Independence and the Towns of Arcadia, Burnside, Lincoln and Montana, pursuant to Sec. 40.075 Laws of 1955 for the State of Wisconsin, to annex the following described territory to Jt. School District No. 6 of the City of Independence and the Towns of Arcadia, Burnside, Lincoln, and Montana.'

Plaintiffs insist that the petition wholly fails because it does not state (1) that the territory to be annexed was in a school district which did not operate 12 grades; (2) that the Independence district operates 12 grades and holds...