Morrissette v. De Zonia
| Decision Date | 07 May 1974 |
| Docket Number | No. 8,D,No. 23,8,23 |
| Citation | 217 N.W.2d 377,63 Wis.2d 429 |
| Parties | Douglas W. MORRISSETTE et al., Appellants, v. Robert De ZONIA, President, et al., being members of the School Board of Jt. School Dist.ane County, Respondents. |
| Court | Wisconsin Supreme Court |
Jonathan D. Jackson, Jr., John J. Heim, Madison, guardian ad item, for minors.
Edwin Conrad, City Atty., Gerald C. Kops, Asst. City Atty., Madison, for respondents.
The preliminary issue here is whether mandamus is a proper remedy in this case.
A writ of mandamus lies to compel public officers to perform their prescribed statutory duties. 1
'. . . Mandamus, however, is an extraordinary remedy and will not lie if there is another adequate and specific remedy at law (Underwood v. Karns (1963), 21 Wis.2d 175, 124 N.W.2d 116), or if the act lies entirely within the discretion of the officer.' 2
And it has been held to be an abuse of discretion for a court to compel action through mandamus when the duty is not clear and unequivocal and requires the exercise of discretion. 3
Aside from its decision on the merits, the trial court felt that the petitioners had failed to show a clear and specific duty on the part of the school board in this case. The court apparently felt that the ambiguity created by considering the effect of sec. 120.41, Stats., on sec. 121.54 would in any event prevent the issuance of a writ of mandamus. The trial court said in its decision:
'Even if this court did not entirely agree with the functional annexation theory, the foregoing points out that the duty alleged by the petitioners to be specific, precise and clear is in fact ambiguous, and at least doubtful, so that the writ of mandamus will not lie.'
The trial court here misunderstands the necessity for a clear and unequivocal duty before mandamus will lie to compel performance of that duty. The court apparently felt that if construction and statutory interpretation were necessary to determine whether a mandatory duty existed under the facts, then mandamus would not lie even after such interpretation revealed the nature of the action sought to be compelled. In this particular case sec. 121.54, Stats., sets up a clear and unambiguous duty to provide transportation to and from public school for all pupils who reside in the school district two miles or more from the nearest public school they are entitled to attend. 4 There is an equally clear exception to this duty and that is that it does not apply to those pupils who reside in cities unless the school they attend is located outside the city but within the boundaries of the school district. 5 The School Board argued that the children of the petitioners in this case reside 'in cities' within the meaning of sec. 121.54(1), by virtue of sec. 120.41(1). 6 Thus, once it is determined whether in fact the petitioners' children reside 'in cities' it will be clear whether or not there exists a mandatory duty on the school board to provide them with transportation to and from public school. Because one has to resolve apparently conflicting statutory provisions to arrive at the nature of the duty sought to be compelled by mandamus does not mean that mandamus will not lie once that determination is made.
In State ex rel. Kurkierewicz v. Cannon 7 this court also said that:
The court in Kurkierewiez went on to say that if mandamus is not a proper remedy to compel certain action a writ of mandamus so directing would be an abuse of discretion. As a corollary it follows that if a trial judge erroneously concludes that mandamus is not a proper remedy when in fact it is, that also constitutes an abuse of discretion. Thus, we must determine whether the the trial judge correctly determined that there was no absolute duty imposed by law on the School Board in this case to provide transportation at public expense for the children of petitioners and those similarly situated. This leads us to the consideration of the crucial issue on this appeal:
Does the School Board of the City of Madison Joint School District No. 8 have a duty under sec. 121.54, Stats., to transport to and from school public school students who reside outside the city of Madison but within the school district and who also reside in excess of two miles from the nearest school they are entitled to attend?
Duty of Transportation.
In correctly identifying the main issue in this case, the trial court stated:
'The issue of this case is whether there is an absolute duty imposed by law so that a Writ of Mandamus will lie, ordering the Board of Education to provide school bus transportation to the town of Fitchburg residents. . . .
'. . .
'Therefore, whether the writ of mandamus will lie, is principally dependent upon the nature of the residence of pupils who reside in territory attached to the city of Madison for school purposes.'
In resolving this issue the trial court simply misconstrued Cartwright v. Sharpe, 8 this court's recent decision on this very subject. In that case the School Board of Joint District No. 1, in the city of Fond du Lac, appealed to this court from the granting of a peremptory writ of mandamus ordering them to furnish transportation to students living in Fond du Lac and attending parochial schools outside the city of Fond du Lac and more than two miles from their residences. This court reversed the lower court decision and found that the writ of mandamus should have been quashed.
The court was dealing with the statute as it was worded in 1967; however, those sections with which we are concerned have not been substantially changed since that time. This court found that:
'From a literal reading of these statutes (set forth above), there is no question from language which is plain and unambiguous that the 'over two mile' provision for mandatory transportation does not 'apply to pupils who reside in cities' except where the school board 'determines' to provide such transportation.' 9
The court further discussed the classification scheme as follows:
10
However, in speaking of the plain and unambiguous language of sec. 121.54, Stats.1967, this court was not presented with the question of the effect of sec. 120.41 on the meaning of the words 'reside in cities' as used in sec. 121.54. An ambiguity can be created by the interaction of two separate statutes as well as by the interaction of the various words and the structure of the statute itself.
The legislature responded to this decision and by ch. 213 of the Laws of 1969 added the classification contended for by the petitioners in the Cartwright case. Sec. 121.54(1), Stats., now reads that mandatory transportation provisions do not 'apply to pupils who reside in cities unless the school they attend is located outside the city but within the boundaries of the school district.' (Emphasis added.)
In the Cartwright v. Sharpe case the school board was in fact providing transportation for children in the same situation as the children of petitioners in the present case. The school board in Cartwright had at first proposed to furnish transportation to all students in the city who lived more than two miles from school but a budget cut eliminated the necessary funds for such an undertaking. As a result there was no transportation for those living in the city and more than two miles from school, but transportation was provided for those living outside the city and more than two miles from school, whether public or parochial. This was a joint city school district just as is the district in the present case. The School Board in Cartwright, however, interpreted its duty of transportation of district pupils in a different manner than the School Board of Madison Joint District No. 8, Dane County.
The School Board in the present case feels that by virture of the provisions of sec. 120.41(1), Stats., it has no mandatory duty to provide transportation to any pupils within the district. The School Board argues that all pupils within the district are 'city residents' by the provisions of sec. 120.41(1), Stats., and therefore any duty to transport them is made discretionary by sec. 121.54(1). The trial court agreed with this contention of the school board.
Sec. 120.41(1), Stats., provides that territory outside a city which is joined with city territory in the formation of a city school district is attached to the city for school purposes. The section also provides that a city school system, although a single and separate school district, is not a separate legal entity. In State ex rel. Board of Education v. Racine 11 this court explained that the legislative purpose of statutes...
To continue reading
Request your trial
-
Lornson v. Siddiqui
...language of Wis. Stat. § 895.04(2). Ambiguity may be created by the interaction of two conflicting statutes. Morrissette v. DeZonia, 63 Wis.2d 429, 436, 217 N.W.2d 377 (1974). ¶ 38 Wisconsin Stat. § 895.04(2) provides a hierarchy of eligible claimants in a general wrongful death action. As ......
-
State, Law Enforcement Standards Bd. v. Village of Lyndon Station, 78-456
...or appropriate, it would have been an abuse of the trial court's discretion to refuse to issue the writ. Morrissette v. DeZonia, 63 Wis.2d 429, 434, 217 N.W.2d 377 (1974). Thus, we find that mandamus was the proper remedy in this Order and judgment affirmed. BABLITCH, Judge (dissenting.) I ......
-
Miller v. Smith
...actions in either granting or denying the writ will be affirmed unless the trial judge abused his discretion. Morrissette v. DeZonia, 63 Wis.2d 429, 434, 217 N.W.2d 377 (1974); State ex rel. Kurkierewicz v. Cannon, supra, 42 Wis.2d n. 11, at 375-76, 166 N.W.2d 255. This court has set forth ......
-
Law Enforcement Standards Bd. v. Village of Lyndon Station
...actions in either granting or denying the writ will be affirmed unless the trial judge abused his discretion. Morrissette v. DeZonia, 63 Wis.2d 429, 434, 217 N.W.2d 377 (1974); State ex rel. Kurkierewicz v. Cannon, supra (42 Wis.2d 368) n. 11 at 375-76 (166 N.W.2d 255). This court has set f......