Perkins v. Peacock

• Decision Date: 05 May 1953
• Citation: 263 Wis. 644,58 N.W.2d 536
• Parties: PERKINS et al. v. PEACOCK et al.
• Court: Wisconsin Supreme Court

Page 536

58 N.W.2d 536

263 Wis. 644

PERKINS et al. v. PEACOCK et al.

Supreme Court of Wisconsin.

May 5, 1953.

Bogue & Sanderson, Portage, for appellants.

Richard W. Bardwell, Dist. Atty. for Dane County, Madison, for Dane County School Committee and permanent secys. thereof.

Toebaas, Hart, Kraege & Jackman, Madison, for School Board of Joint School Dist. No. 1, Village of Black Earth, et al., and Julian Martinson, Clerk thereof.

CURRIE, Justice.

The learned circuit judge quashed the writ of certiorari on the ground that the statutory method of appeal provided by sec. 40.303(9), Stats. 1949, was the exclusive remedy of plaintiffs and that certiorari therefore would not lie. Such statute grants a right of appeal from any order of a county school committee to 'Any person aggrieved' thereby, such right of appeal being limited to a period of 30 days 'following the issuing and recording' of the order.

On this appeal, counsel for plaintiffs contend that the county school committee failed to comply with certain statutory requirements in issuing the order creating the new joint district No. 1, and that such defects were jurisdictional in character so that the committee lacked jurisdiction to issue its order, and therefore certiorari is the proper remedy available to plaintiffs to review the proceedings of the county school committee with respect to the creation of such new school district. Furthermore, counsel for plaintiffs also maintain that the instrument labelled as the order of the committee was in the form of a notice, and not an order, and therefore no appeal could be taken therefrom under sec. 40.303(9), Stats.1949.

We will first consider the contention that no order was ever entered by the county school committee providing for the creation of new joint school district No. 1. The essential portions of the instrument, which was labelled as the order of the committee in the return made to the writ of certiorari, have been set forth in the statement of facts immediately preceding this opinion. While it is true that such instrument reads as a notice instead of an order, it does recite the order of the county school committee. There can be no doubt that anyone reading the instrument would know exactly what the order provided, and such provisions contained all the essential statutory elements. Plaintiffs' original petition for writ of certiorari referred to the instrument as an 'order', and while such petition enumerated various defects in the proceedings of the county school committee which were alleged to be jurisdictional in character, the petition contained no allegation attacking the form of the order. The writ of certiorari, which also was apparently drafted by counsel for plaintiffs, refers to the order as 'said erroneous and illegal order'.

Furthermore, it appears that plaintiffs did not raise the issue as to the defect in the form of the order in the trial court. At least counsel for defendants have stated in the oral argument that such issue was not raised in the trial court, such statement was not disputed by plaintiffs' counsel, and the trial judge makes no mention of such issue being raised in his memorandum decision. Not having raised the issue as to the defect in the form of the order in the trial court, such issue will not be considered on this appeal. Doyle v. Teasdale, 1953, 263 Wis. 328, 347, 57 N.W.2d 381; Townsend v. La Crosse Trailer Corp., 1950, 256 Wis. 609, 614, 42 N.W.2d 164; and Monroe County Finance Co. v. Thomas, 1943, 243 Wis. 568, 572, 11 N.W.2d 190.

Plaintiffs' counsel urge the following defects in the county school committee procedure as being fatally defective, and therefore depriving the committee of jurisdiction to have entered the order creating the new school district:

(1) But four of the six members of the committee attended the May 4, 1951, meeting, and but five of the six members of the committee attended the June 2, 1951, meeting, and the returns to the writ of certiorari do not disclose that the absent members received notice of such meetings.

(2) Sec. 40.303(4)(b), Stats.1949, required that a public hearing be held not more than 15 days after the date the committee adopted the resolution providing for such hearing, while 17 days actually elapsed between the committee's meeting of May 4, 1951, when the resolution for a public hearing was adopted, and the date of holding such public hearing on May 21, 1951.

(3) Sec. 40.303(4)(b), Stats.1949, requires that within 10 days after the public hearing the county committee shall hold a conference on the plan of reorganization with the school boards of the districts involved in the proposed plan, but in violation of such statutory provision such conference was not held until June 2, 1951, or 13 days after the public hearing of May 21, 1951.

(4) That the order was signed by five of the six members of the county school committee as individuals, there being nothing to indicate that they were signing the same in the capacity of members of the county school committee.

Assuming, but not deciding, that some of the foregoing defects in procedure were jurisdictional in character, we then are faced with the crucial question argued on this appeal of whether jurisdictional defects in the proceedings of a county school committee, which result in the issuance of a school reorganization plan, may be raised by certiorari or whether the statutory method of appeal is the exclusive remedy to review such proceedings.

In School Dist. No. 3 v. Callahan, 1941, 237 Wis. 560, 578, 297 N.W. 407, 416, 135 A.L.R. 1081, plaintiffs appealed from a school district consolidation order made by the state superintendent of public instruction, pursuant to the express provision in sec. 40.30(6), Stats.1939, authorizing the same. One of the questions raised was whether plaintiffs were entitled to a trial de novo in circuit court on such appeal, and this court held therein as follows:

'The term 'appeal', as used in sec. 40.30(6), Stats., without specifying the nature of the proceedings thereon, does not imply a trial de novo.'

Sec. 40.303(9), Stats.1949, is an outgrowth of sec. 40.30(6), Stats.1939. Inasmuch as the county school committees, instead of the state superintendent of public instruction, are now empowered to issue the consolidation orders, it was necessary in substituting sec. 40.303(9), Stats.1949, for sec. 40.30(6), Stats.1939, to make some changes in wording to cover this change, but the tenor of the provision for appeal to circuit court is worded substantially like the prior statute. Therefore, the above quotation from our decision in School Dist. No. 3 v. Callahan, supra, is equally applicable under the provisions of sec. 40.303(9), Stats.1949, as it was under the prior appeal statute before the court in that case, and there is no trial de novo in the circuit court in any appeal from an order of the county school committee.

There being no trial de novo, the circuit court may not review the wisdom or advisability of the order appealed from. What then may it review on such appeal? The conclusion seems inescapable that the Legislature intended such review to cover questions of jurisdiction and possible abuse of statutory power by the committee, which is precisely the scope of review on certiorari.

We believe that the decisions of this court is State ex rel. Chicago & N. W. R. Co. v. Oshkosh, A. & B. W. R. Co., 1898, 100 Wis. 538, 77 N.W. 193, and City of Superior v. Committee on Water Pollution, 1953, 263 Wis. 23, 56 N.W.2d 501, are controlling on the issue before us.

The question before the court in State ex rel. Chicago & N. W. R. Co. v. Oshkosh, A. & B. W. R. Co., supra, was whether certiorari was the proper remedy to raise the question of whether the defendant corporation was a railroad corporation possessing the right to acquire a crossing over the tracks of the relator corporation by eminent domain. This question had been raised in the trial court by way of objection to the condemnation proceedings but the trial court had overruled the same and entered an order appointing commissioners. This court speaking through Mr. Justice (later Chief Justice) Winslow, declared:

'The order in question was a final order made by the court in a special proceeding, and hence was appealable.

Gill v. [Milwaukee & L. W.] Railway Co., 76 Wis. 293, 45 N.W. 23; Wisconsin Cent. Ry. Co. v. Cornell University, 49 Wis. 162, 5 N.W. 331. Appeal from the order is an entirely adequate remedy to test the question raised by the relator. The general rule is well established that a common-law certiorari will not issue where a party has an adequate remedy by appeal. Wardsworth v. Sibley, 38 Wis. 484; McCaffrey v. Nolan, 1 Wis. 361; Harris, Certiorari, § 44.'

In City of Superior v. Committee on Water Pollution, supra, the plaintiff city in an action for declaratory judgment attempted to challenge the jurisdiction of the state committee on water pollution to enter an order directing the city to construct sewage-treatment facilities, it being contended that the committee as a condition precedent to entering said order was first required to enter into an agreement with the responsible authorities of Minnesota relative to the control of pollution in interstate waters. The committee defended on the ground that sec. 227.20, Stats., provides for review of an order of an administrative agency which is 'In excess of the statutory authority or jurisdiction of the agency,' and that such right of review was the exclusive remedy of the city. This court held that such right of review under the provisions of the Uniform Administrative Procedure Act, ch. 227, Stats., was the exclusive remedy of the city and therefore the action for declaratory judgment would not lie. Headnote 2 of such decision correctly states the applicable principle of law as follows:

'Where a specified method of review is prescribed by statute, the method so prescribed is exclusive.'

Counsel for plain...