Olson v. Rothwell

• Decision Date: 05 October 1965
• Citation: 28 Wis.2d 233,137 N.W.2d 86
• Parties: Margery OLSON, Petitioner-Appellant, and Tilman Severson, Petitioner-Respondent, v. Angus ROTHWELL, State Superintendent of Public Instruction, Respondent. Dorothy SAHY, Petitioner-Appellant, v. Angus ROTHWELL, State Superintendent of Public Instruction, Respondent.
• Court: Wisconsin Supreme Court

Page 86

137 N.W.2d 86

28 Wis.2d 233

Margery OLSON, Petitioner-Appellant, and Tilman Severson, Petitioner-Respondent, v. Angus ROTHWELL, State Superintendent of Public Instruction,

Respondent.

Dorothy SAHY, Petitioner-Appellant, v. Angus ROTHWELL, State Superintendent of Public Instruction,

Respondent.

Supreme Court of Wisconsin.

Oct. 5, 1965.

Godfrey, Godfrey, Neshek & Conway, Thomas G. Godfrey, Elkhorn, for appellants.

Bronson C. La Follette, Atty. Gen., Harold H. Persons, Asst. Atty. Gen., Madison, for respondent.

HALLOWS, Justice.

The appellants raise three questions on appeal: (1) Whether the Rock County School Committee had the power to make an order on August 29, 1962, attaching all the territory of the Barr district excepting the Sahy property to the Orfordville school district; (2) whether such action was arbitrary and thereby an unconstitutional exercise of the legislative process; and (3) whether the modification by the circuit court to include the Sahy property in the respondent's order was an unlawful usurpation of legislative authority.

The appellants contend that when Rock County School Committee attached the territory of the Barr district excepting the Sahy property to the Orfordville district on August 29, 1962, it was without jurisdiction to do so because the Sahy property was involved in the appealed-attachment order of June 8th. The appellants rely on sec. 40.025(1)(d), 8, Stats., which provides the jurisdiction of a reorganization authority is lost 'Upon the perfection of an appeal pursuant to this chapter.' However, the Joint Rock-Green County School Committee's order of June 8, 1960, only included the Sahy property of the Barr district and the Rock County School Committee's order of August 29, 1962, did not include but expressly excluded the Sahy property. The contention of the appellants can only have merit on the proposition that if a school-reorganization order affects part of the territory comprising a school district, such order pre-empts all the territory in the school district. There is no authority for such a proposition. All the authority is to the contrary. Sec. 40.025(1)(c) ¹ provides only the second school reorganization proceeding is void if it pertains to all or any part of the territory included in the order of the first proceeding which is then pending or whose order has not then become effective.

The pre-empted jurisdiction of the first proceeding extends no farther than the particular and identical land or territory involved. In School Dist. No. 3 of Town of Fort Winnebago v. Harding (1960), 10 Wis.2d 122, 102 N.W.2d 97, petitions for reorganization were held invalid and as not conferring jurisdiction because they were filed prior to the filing of the order of the final determination in the proceedings and involved some of or all of the territory in the order of the first proceedings. Likewise, in Palmer v. Sawyer County School Comm. (1959), 7 Wis.2d 437, 96 N.W.2d 810, the petition filed during the pendency of an appeal of a prior petition conferred no jurisdiction, as both proceedings dealt with the same territory. In Balson v. Joint County School Comm. (1963), 19 Wis.2d 96, 119 N.W.2d 438, in construing sec. 40.025(1)(c), we pointed out the second proceeding was void if it pertained to the territory involved in the first proceeding whether or not the order issued in the second proceeding affected the territory involved in the first proceeding. In our recent case of Ford v. Rothwell (1964), 23 Wis.2d 80, 126 N.W.2d 489, we held the preemption of the appeal as the statute then existed ended with the filing of the judgment of the circuit court.

The appellants contend the action of the Rock County School Committee in making its order of August 29th was arbitrary and capricious because in detaching all the property of the Barr district excepting the Sahy property and attaching it to Orfordville, it left a school district of 90 noncontiguous acres. In State ex rel. City of La Crosse v. Rothwell (1964), 25 Wis.2d 228, 130 N.W.2d 806, 131 N.W.2d 699, we stated the determination of school district boundaries was a legislative function which may be delegated but that the power may not be exercised arbitrarily or to discriminate or deny equal protection of the laws. We do not consider the effect of the exercise of power necessarily determines the character of its exercise. In Lewis Realty v. Wisconsin Real Estate Broker's Board (1959), 6 Wis.2d 99, 94 N.W.2d 238, we did find the result of an administrative agency action sufficient to indicate arbitrariness on the part of the board in imposing a penalty. While it can be admitted the four noncontiguous parcels of land left composing the Barr district could not and should not constitute a separate school district, nevertheless this temporary result was not the result of the arbitrary exercise of power by the Rock County School Committee.

At the time of its action on August 29, 1962, the committee was under the compulsion of sec. 40.035 to place all the territory in Rock county in a school district operating a high school; such action...