Sch. Dist. No. 3 of Town of Adams v. Callahan

• Court: Wisconsin Supreme Court
• Writing for the Court: FRITZ
• Citation: Sch. Dist. No. 3 of Town of Adams v. Callahan, 237 Wis. 560, 297 N.W. 407 (Wis. 1941)
• Decision Date: 15 April 1941
• Parties: SCHOOL DIST. NO. 3 OF TOWN OF ADAMS et al. v. CALLAHAN, Superintendent of Public Instruction. JOINT SCHOOL DIST. NO. 5 OF TOWN OF ADAMS et al. v. SAME. JOINT SCHOOL DIST. NO. 9 OF TOWN OF EASTON et al. v. SAME.

237 Wis. 560

297 N.W. 407

SCHOOL DIST. NO. 3 OF TOWN OF ADAMS et al.

v.CALLAHAN, Superintendent of Public Instruction.

JOINT SCHOOL DIST. NO. 5 OF TOWN OF ADAMS et al.

v.SAME.

JOINT SCHOOL DIST. NO. 9 OF TOWN OF EASTON et al.

v.SAME.

Supreme Court of Wisconsin.

April 15, 1941.

Appeals from orders of the Circuit Court for Adams County; George J. Leicht, Judge.

Affirmed.

Case No. 146 is an appeal taken under sec. 40.30(6), Stats.1939, to the circuit court by School District No. 3 of the Town of Adams, Adams County, W. O. Tuttle, et al., from an order which was issued under sec. 40.30(1), Stats.1939, by John Callahan, as Superintendent of Public Instruction, and by which the school district was abolished and the land comprising the district was attached to Joint School District No. 10 of the Town and City of Adams. Cases Nos. 147 and 148 are similar appeals from orders to the same effect in relation to Joint School Districts No. 9 of the Towns of Easton and Quincy, and No. 5 of the Town and City of Adams, in Adams County, and by certain other persons. The court ordered the appellants in each case to file complaints alleging the facts upon the bases of which they claim the orders ought to be reversed. Complaints were filed accordingly in each case, and John Callahan, as respondent, demurred thereto on the ground that the facts alleged were not sufficient to constitute a cause of action. The circuit court sustained the demurrers, and from orders entered accordingly an appeal to this court was taken by the appellants in each case.Grady & Fairchild, of Portage (James J. Burke, of Portage, of counsel), for appellants.

John E. Martin, Atty. Gen., James Ward Rector, Deputy Atty. Gen., and Warren H. Resh, Asst. Atty. Gen., for respondent.

FRITZ, Justice.

By stipulation between the parties in Cases Nos. 146, 147 and 148 the records therein are included in but one printed case and there is but one set of briefs. In each case there was an appeal to the circuit court under sec. 40.30(6), Stats.1939, by the appealing school district from an order which was issued under sec. 40.30(1), Stats.1939, by the respondent, John Callahan, as the Superintendent of Public Instruction of the state, and by which he abolished the district in question and attached the land comprising the district to Joint School District No. 10 of the Town and City of Adams, in Adams County. Each of the orders directed all assets, liabilities and records of the district abolished to be turned over to the officers of Joint School District No. 10 to become its property. The circuit court ordered the issues in each case to be framed by the filing of a complaint by the appellants and pleadings in response thereto by the superintendent. Pursuant thereto complaints were filed and the state superintendent demurred to the two causes of action in the complaints in the cases of School District No. 3 and Joint School District No. 9, and to the first two causes of action in the complaint in the case of Joint School District No. 5. An answer was interposed to a third cause of action in the latter case, and on this cause of action judgment was entered for the respondent and no appeal has been taken. The court sustained the demurrers to the other causes of action, and from orders to that effect the appellants have taken an appeal to this court in each case. In so far as the issues on these appeals are concerned, the material facts alleged in the complaints are substantially to the same effect in each case. It suffices to note here the allegations to the following effect. In each case the appellants are the school districts abolished by the order and the members of their boards, who appeal as such members and also in their individual capacity as taxpayers and owners of property in their district, and as the parents of children of school age who reside therein. The material facts relied upon in the first cause of action are that the electors of the abolished districts have had no voice in the selection of the present board of the Joint School District No. 10, and the control over this district will remain largely in the hands of the electors of the City of Adams because its population is greater than that of the remainder of the district, and that rural problems will be ignored by the city dominated board; that the children will have to travel greater distances to school than formerly, and they and their parents will be at a disadvantage and suffer in several respects alleged, and their farm values will decline; that less state aid will be received by the one consolidated district than was received by the four separate districts, and local taxes will be increased; that Joint School District No. 10 has indebtedness, whereas the abolished districts are free from debt; and that the teachers of these districts will be deprived of their jobs. The material facts relied upon in the second cause of action are that the decision to abolish the districts and to attach them to Joint School District No. 10 was made by one Merrit, a subordinate in the superintendent's office; that no notice of the change of districts was given except a notice of a meeting which was sent to members of the district boards and recited that the boundaries would be changed, and that at these meetings Merrit presented the proposed plan of consolidation but refused to entertain any objections by the members in attendance; that prior to the issuance of the orders representatives of each district called upon the superintendent and objected to his plan, but were told by him that he relied upon the opinion of Merrit and that the decision would not be changed; that no hearing was had before the state superintendent; that the decision to abolish each of the districts and to attach them to Joint School District No. 10 was in the first instance made by Merrit, and the superintendent did not, prior to June 28, 1940, independently investigate the facts material to the order complained of; that he considered a district survey statement and schedule of expense and certain other items, which was prepared in relation to each district, and the recommendation of Merrit thereon, but he did not prior to that date consider the facts which the abolished districts alleged in their first cause of action; and that the districts had no notice of the time and place at which the subordinate made his recommendation to the superintendent, and the form of the orders in question were drawn by Merrit and the superintendent's name was signed thereto at his direction by a subordinate.

The orders of which appellants complain were made by the superintendent under the provision in sec. 40.30(1), Stats. 1939, that “The state superintendent is authorized, on his own motion, by order to attach districts with valuations of less than one hundred thousand dollars to contiguous districts”. This provision was inserted by the amendment of sec. 40.30(1), Stats., by Ch. 228, L.1939, and by this chapter there was also added to sec. 40.30(6), Stats., the provision that “An appeal may be taken from any decision of the said state superintendent within thirty days from date of said decision to the circuit court of any county affected.” Under this provision the appeals in question were taken to the circuit court. Prior to these amendments, sec. 40.30(1), Stats., authorized the abolition and consolidation of school districts to be ordered by town and village boards, and city councils of the municipality in which the districts were located, and as to an order so made sec. 40.30(1), Stats., provided and still provides that, “Any person aggrieved by any order issued and recorded pursuant to the provisions of this section *** may appeal therefrom to the state superintendent within thirty days following the issuing and recording of any such order, ***.”

Appellants contend that the provisions inserted in sec. 40.30(1), Stats., by the 1939 amendment which authorizes the superintendent to order the attachment of districts with valuations of less than $100,000 to contiguous districts is unconstitutional on the grounds that the mere valuation of the property within a district “does not provide a proper standard germane to the purpose of the act”, and the different treatment accorded under this provision to persons by reason of the amount of such valuation within a district in which they reside, denies to appellants and others similarly situated the equal protection of the law; and that the statute involves the unconstitutional delegation of legislative power in that no standard is set up or fact expressed by the Legislature upon the existence of which the superintendent is to act or required to alter or abolish and consolidate school districts. In this connection, appellants argue also that sec. 1, Art. X, Wis.Const., which provides that “the supervision of public instruction shall be vested in a state superintendent and such other officers as the legislature shall direct”, is violated by delegating to a constitutional administrative officer power which is beyond the scope of his duty in that under this constitutional provision his power as such officer is limited to matters pertaining to public instruction, and this limitation denies the right of the Legislature to confer upon the officer the power to legislate by the establishment of school districts.

[1] These contentions cannot be sustained, in view of the established rules that the formation of school districts and the power to exercise discretion in determining whether such districts shall be altered by consolidation or otherwise is not such an exclusive legislative function as may not be delegated to the state superintendent, as well as to town boards; and that this power may be delegated without any standard whatsoever to guide in the exercise of the power delegated. Thus in sustaining a decision by the Superintendent of Public Instruction in proceedings before him on an appeal from an order of a...