State ex rel. City of West Allis v. Dieringer

• Decision Date: 05 March 1957
• Citation: 275 Wis. 208,81 N.W.2d 533
• Parties: STATE ex rel. CITY OF WEST ALLIS, a municipal corporation, Appellant, v. Herman C. DIERINGER, Village Clerk, Village of West Milwaukee, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 533

81 N.W.2d 533

275 Wis. 208

STATE ex rel. CITY OF WEST ALLIS, a municipal corporation, Appellant, v. Herman C. DIERINGER, Village Clerk, Village of West Milwaukee, et al., Respondents.

Supreme Court of Wisconsin.

March 5, 1957.

George A. Schmus, City Atty., Charles G. Panosian, Asst. City Atty., West Allis, for appellant.

Allen J. Busby, Village Atty., and Maxwell H. Herriott, Special counsel, Milwaukee, for village of West Milwaukee and Dieringer, Village Clerk.

Joseph A. Barly, Milwaukee, for respondents.

STEINLE, Justice.

The principal question presented is whether the trial court correctly interpreted the term 'territory affected' as it appears in sec. 40.06, Stats.1955.

The legislature has provided two methods for the organization, reorganization or dissolution of school districts in this state. Under sec. 40.03, Stats., authority is vested in the School Committee to create, alter, consolidate or dissolve school districts. Under sec. 40.06, Stats., such power is invested in town boards or village boards or councils of cities of the second, third or fourth class. Joint City School District No. 1 referred to herein, was organized pursuant to sec. 40.03, Stats. The boards of the Village of West Milwaukee and the Town of Greenfield sought to organize Joint School District No. 16 under provision of sec. 40.06, Stats.

Sec. 40.06, Stats., provides as follows:

'(1) Power; Limitations. Upon the filing of a petition by an elector with the municipal clerk or upon its own order, any town or village board or council of a city of the second, third or fourth class may, by order, create, alter, consolidate or dissolve school districts. No territory shall be detached from a district unless by the same order it is attached to another district or districts. No district shall be created having less than $150,000 of taxable property as shown by the last assessment roll.

'(2) Joint Actions of Board. If the territory affected by a proposed order lies in more than one municipality, the municipal boards shall act jointly; the concurrence of a majority of each board is necessary to a valid order. The meeting of the several municipal boards or councils shall be called by the clerk of the municipality with whom the petition is filed; he shall give at least 5 days' notice in writing of the time and place of meeting to each member of each board or council.

'(3) Notice of Proposed Action. Whenever a petition for such alteration, creation, consolidation of dissolution is filed, or a resolution initiating such action is adopted, the municipal board or boards or council or councils shall within 30 days meet and by resolution or joint resolution set a date for hearing within 10 days and give at least 5 days' notice, in writing, to the clerk of each district to be in any way affected thereby of the day, hour and place it will meet to decide upon the proposed changes. Each district clerk shall immediately notify the other members of his board.

'(4) Order. An order creating a district shall number the district and mention the municipality in which it is situated. A certified copy of the order shall be promptly filed, and recorded in the office of the clerk of each municipality in which school districts affected by the order are situated and one copy shall be mailed to the county superintendent and one to the state superintendent. Such order shall be presumptive evidence of the facts recited therein and of the validity of all proceedings preliminary thereto.

'(5) Appeal. (a) Any person aggrieved by an order of a municipal board or council may appeal to the state superintendent within 30 days following the recording of such order; if a board or council, when petitioned to do so, refuses or neglects to issue and record an order of alteration, dissolution, consolidation or creation, any person aggrieved may appeal within 90 days following the filing of the petition.

'(b) After determining the appeal the state superintendent shall enter an order affirming, modifying or reversing the order appealed from, or if the appeal is from the refusal of a municipal board or council to file orders of alteration, dissolution, creation or consolidation when petitioned to do so, the state superintendent may, if he finds the municipal board or council erred in refusing to file such an order, make such order as he deems proper under the circumstances.

'(c) An appeal from an order of the state superintendent may be taken to the circuit court of any county in the affected territory within 30 days from the date of said order. A written notice of appeal stating the grounds upon which said appeal is based must also be served on the state superintendent within 30 days from the date of his order.

'(6) Referendum. If within 30 days after the recording of an order by a municipal board, city council or state superintendent, 10 per cent of the electors in the proposed district or 500 electors, whichever is smaller, file a petition with the county clerk as provided in s. 40.03(6)(b), requesting a referendum election, such order shall not become effective until it has been approved by both a majority vote of the resident electors within all of the territory outside the city or village limits of any city or village involved in the proposed reorganized district, voting at such election, and by a majority vote of the electors residing within city or village limits of all cities and villages involved in the proposed reorganized district voting at such election. The electors residing in that portion of any municipality not included in the area proposed to be reorganized shall not vote in such referendum. The referendum shall be conducted and the costs allocated in the manner provided for referendums in s. 40.03(6) except as herein set forth.'

The trial court determined that the term 'territory affected' relates solely to that part of an existing school district which is directly affected by the reorganization of a school district, and that it does not refer to the entire school district. The court was of the opinion that the term 'territory affected,' is plain and unambiguous, and that it is not necessary to employ interpretation as contained in the Attorney General's opinion for use in construing the statute. In reaching such conclusion the court pointed out that when the legislature decided to refer to an entire school district, it used the word 'district,' but that when it had in mind only part of an existing district, it used the word 'territory.' The court also referred to the referendum provided in subsection (6) of sec. 40.06, Stats., and indicated that in its opinion, had the legislature intended 'territory affected' to be synonymous with 'school district affected,' it would not have limited the right to vote solely within the area directly affected by the reorganization of a school district.

The court also found that after Joint City School District No. 1 was fully organized on January 5, 1956, it no longer preempted the field with reference to territory within its borders; that under sec. 40.06, Stats., the Village of West Milwaukee and the Town of Greenfield were privileged to detach territory from within the boundary of Joint City School District No. 1 for the creation of Joint School District No. 16; that notice was not required to be served upon the officers of the City of West Allis and the Town of New Berlin with respect to the program to detach territory from Joint City School District No. 1; that the action of the municipal boards of the City of West Allis and the Town of New Berlin was not required under sec. 40.06, Stats., for the detachment of territory from Joint City School District No. 1.

The City of West Allis does not contend that the provisions in sec. 40.06 for the formation of a school district by a town, village or city of the second, third or fourth class were repealed or suspended by the enactment of sec. 40.03, Stats. Nor does it contend that the question as to whether the boundaries of a school district should be changed is one of law or fact for judicial determination. It does not controvert the contention of the defendants that such matter is strictly for the legislature. It maintains that there is ambiguity with reference to the term 'territory affected' as such appears in sec. 40.06, Stats., and that hence an opinion of the Attorney General, which appears in Vol. XXI, Op. Atty Gen., pp. 837, 838, and was furnished to the State Superintendent of Public Instruction on August 19, 1932, with reference to a construction of that term, and which has not been changed by the legislature in subsequent legislation relating to the subject, bears controlling weight. In part that opinion reads as follows:

'Subsec. (3), sec. 40.30 [now sec. 40.06, Stats.,] provides as follows:

"When the territory to be affected by proposed order lies in more than one municipality, the municipal boards shall act jointly, and the concurrence of a majority of each board shall be necessary to a valid order.'

'The territory to be affected by the proposed order includes not only the area actually detached from one school district and attached to the other, but also the area contained in both school districts. The territory of the school district in town 'A' is affected by the detachment of the territory and the consequent necessity of adjusting the assets and liability with the district to which the detached territory is attached by the order. The joint school district located in part in town 'B,' and to which the detached area is to be attached, is affected in a similar manner. The adjustment between school districts caused by such an alteration of their boundaries has a direct effect upon the taxation and liabilities of the entire territory of each district.

'It is the opinion of this department that under the facts stated the order of town 'A' is invalid unless concurred in by each municipal board of the various municipalities in which the joint...