State ex rel. Badtke v. School Bd. of Joint Common School Dist. No. 1, City of Ripon

• Citation: 1 Wis.2d 208,83 N.W.2d 724
• Parties: STATE ex rel. Albert BADTKE et al., Appellants, v. The SCHOOL BOARD OF JOINT COMMON SCHOOL DIST. NO. 1, CITY OF RIPON, et al., Respondents.
• Decision Date: 04 June 1957
• Court: United States State Supreme Court of Wisconsin

Page 724

83 N.W.2d 724

1 Wis.2d 208

STATE ex rel. Albert BADTKE et al., Appellants, v. The SCHOOL BOARD OF JOINT COMMON SCHOOL DIST. NO. 1, CITY OF RIPON, et al., Respondents.

Supreme Court of Wisconsin.

June 4, 1957.

Lehner & Lehner, Princeton, for appellants.

Ela, Christianson & Ela, James F. Clark, Madison, for respondents.

John N. Kramer, Gordon Sinykin and Walter B. Rauschenbush, Madison, amici curiae.

BROWN, Justice.

The motion to quash the writ of certiorari is in the nature of a demurrer to a complaint. It admits the material allegations of fact contained in the petition for the writ but does not admit conclusions of law sought to be drawn from them. "The petition or affidavit upon which the writ issues serves the purpose of an assignment of errors, and no irregularities will be considered except such as are pointed out therein, although they are apparent of record." Tourville v. S. D. Seavey Co., 1905, 124 Wis. 56, 58, 102 N.W. 352, 353; State ex rel A. Hynek & Sons Co. v. Board of Appeals, 1954, 267 Wis. 309, 315b, 64 N.W.2d 741, 66 N.W.2d 623. The motion to quash '* * * is, in effect, a demurrer questioning the legal sufficiency of the facts appearing in the record, and can go no further.' State ex rel. Clancy v. McGovern, 1898, 100 Wis. 666, 671, 76 N.W. 593, 594; State ex rel. Anderson v. Timme, 1888, 70 Wis. 627, 36 N.W. 325. Certiorari lies only to review questions of jurisdiction or power of the body whose decision is in question. Exercise of either legislative or judicial discretion is not reviewable. Starry v. State, 1902, 115 Wis. 50, 90 N.W. 1014; State ex rel. Milwaukee Medical College v. Chittenden, 1906, 127 Wis. 468, 107 N.W. 500.

Joint School District No. 16 includes territory in a number of townships in Fond du Lac, Green Lake and Winnebago counties. The district operates a school containing grades 1 through 8. Certain electors of this district petitioned that certain territory forming part of the district should be annexed to School District No. 1 of the city of Ripon. No. 1 is a completely integrated district operating grades 1 through 12. The annexation proceedings were conducted in reliance on sec. 40.075, Stats., which reads as follows:

'Annexation to common school districts operating high schools. 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). If the school of the area to be annexed is in session, the order shall take effect on the next July 1. If the school is not in session, the order shall take effect at once. 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.'

The petition for the writ, as amended, shows that the various steps and procedures required by sec. 40.075, Stats., were strictly complied with. Appellants do not contend otherwise except that they submit that the territory annexed does not adjoin District No. 1 within the contemplation of the statute. In fact, the territory annexed is a long, irregularly shaped area which winds a course through the interior of District 16. In two places the continuity of the annexed portion is made only by corners of annexed tracts touching each other. The question is whether tracts which thus corner upon each other are, in the words of the statute, adjoining.

In Hennessy v. Douglas County, 1898, 99 Wis. 129, 136-137, 74 N.W. 983, 985, we said, '* * * The distinction between 'adjacent' and 'adjoining' seems to be that the former implies that the two bodies are not widely separated, though they may not actually touch, while 'adjoining' indicates that they are so joined or united that no third body intervenes. * * * The word 'adjoining,' in its etymological sense, means touching or contiguous, as distinguished from lying near or adjacent * * *.' In Independent Consolidated School Dist. No. 66 v. Big Stone County, 1954, 243 Minn. 341, 67 N.W.2d 903, the statute permitted 'adjoining' land to be annexed to a school district. The issue was exactly as it is in the present case. The trial court held that the two parcels were not 'adjoining' but the Supreme Court reversed, holding that they were. Vol. 2, C.J.S. p. 1, says that 'The word [adjoin], in its strictest sense, is said to carry the idea of actual contact and touch; * * *' In the same work, beginning on p. 2, many definitions are given of the word 'adjoining' and many examples of its application are cited from adjudicated cases. We have not read them all but in none of those we have read do we find an instance where parcels which touch each other at their corners are held not to be adjoining. The effort in the cited cases appears to have been to bring tracts which do not touch within the definition of 'adjoining.' Appellants refer us to these paragraphs of C.J.S. and their brief quotes numerous cases in which the term 'adjoining' is used, but they cite none in which parcels which touch each other have been held not to be adjoining. The brief shows great industry in research. If there are cases which hold that lands which 'corner' are not adjoining lands we are sure that counsel would have found them and, finding, would have called our attention to them. Our definition of 'adjoining', given in Hennessy v. Douglas County, supra, still seems to us to be correct and lands which touch each other at a common corner are adjoining lands. The parcels in question here, touching each other at corners, are so situated that in no instance can a third body intervene. We consider that they meet the test of adjoining territory.

It has not escaped our notice that, after referring to territory adjoining a district, etc., sec. 40.075, Stats., goes on in the same sentence to speak of the powers of the electors 'in such adjacent territory.' If this variation in language has any effect it can only be to relax the strictest sense of 'adjoining' permit some favorable consideration to be given to annexations although the parcels do not actually touch. In the present case where they do touch, it is unnecessary to determine to what extent, if any, the use of the term 'adjacent' territory liberalizes the narrow meaning of 'Adjoining.' We conclude, only, that the territory detached from Dist. 16 and annexed to Dist. 1 fulfills the statutory requirement that it adjoin Dist. 1.

With the decision that the lands here annexed to Dist. 1 adjoined that district, it is clear that the terms of sec. 40.075, Stats., were literally followed. Appellants' other objections go to matters which are not in the statute. Thus they contend that it is inequitable for Dist. 1 to take taxable property without taking a commensurate number of children, which children are left for the reduced Dist. 16 to...