State ex rel. City of La Crosse v. Rothwell

• Decision Date: 27 October 1964
• Citation: 25 Wis.2d 228,130 N.W.2d 806
• Parties: STATE ex rel. CITY OF LA CROSSE, a municipal corporation, Robert Abbott, Harold E. Lee, and Justin, Hall, Petitioners-Appellants, v. Angus B. ROTHWELL, State Superintendent of Public Instruction, Defendant-Respondent. STATE ex rel. CITY OF LA CROSSE, a municipal corporation, Robert Abbott, and Harold E. Lee, Petitioners-Appellants, v. Angus B. ROTHWELL, State Superintendent of Public Instruction, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 806

130 N.W.2d 806

25 Wis.2d 228

STATE ex rel. CITY OF LA CROSSE, a municipal corporation, Robert Abbott, Harold E. Lee, and Justin, Hall, Petitioners-Appellants, v. Angus B. ROTHWELL, State Superintendent of Public

Instruction, Defendant-Respondent.

STATE ex rel. CITY OF LA CROSSE, a municipal corporation, Robert Abbott, and Harold E. Lee, Petitioners-Appellants, v. Angus B. ROTHWELL, State Superintendent of Public

Instruction, Defendant-Respondent.

Supreme Court of Wisconsin.

Oct. 27, 1964.

William J. Sauer, La Crosse, for appellants.

George Thompson, Atty. Gen., Harold H. Persons, Asst. Atty. Gen., Madison, for respondent.

HALLOWS, Justice.

Sec. 40.035, Stats., reflects the policy of the state that all territory within the state shall be within school districts operating high schools. Prior to June 30, 1962, territory not included in a district operating a high school could be attached to, created into, or consolidated with a district operating a high school by any of the various procedures provided by secs. 40.03, 40.06, 40.07, 40.12, and 40.14, Stats. On and after July 1, 1962, any territory which was not included in a district operating a high school was required to be attached to, created into, or consolidated with such a district by order of the county school committee not later than July 31, 1962. The order affecting such a result was made retroactive to July 1, 1962, and was subject to appeal to the state superintendent but not to a referendum, sec. 40.035(3)(a) and (b).

On July 1, 1962, certain territory lying outside the city of La Crosse had not been attached to a district operating a high school. On July 2, 1962, the joint county school committee of La Crosse and Vernon counties called a meeting for July 30th to consider the attachment to the La Crosse city school district of certain territory involved in Case No. 37. After a hearing, an order was made attaching six school districts and part of two others to the La Crosse school district. The appellants City of La Crosse, which operates under the city school plan provided by secs. 40.80 to 40.827, Stats., Robert Abbott and Harold E. Lee, property owners and electors of said city, and Justin Hall, a property-owner elector and parent of a child of school age in the territory to be attached, appealed the order to the state superintendent of public instruction.

In Case No. 38 the joint county school committee of La Crosse, Vernon, and Monroe counties on July 20, 1962, attached an area to the Westby school district. This order was appealed by a resident of the area attached. On August 21, 1962, the state superintendent of public instruction held an informal hearing on each appeal. He later affirmed the order in Case No. 37 attaching territory to the La Crosse city school district and reversed the order attaching the territory to the Westby school district in Case No. 38 and attached that territory to the city of La Crosse school district. These two orders were then brought for review by certiorari to the circuit court and affirmed.

The state superintendent questions whether the city of La Crosse my raise the constitutionality of sec. 40.035, Stats. It is not contended the individual appellants do not have the capacity to raise such issue. The general rule has been that a municipality or state agency cannot question the constitutionality of a statute and was thoroughly discussed in Columbia County v. Board of Trustees of Wis. Retirement Fund (1962), 17 Wis.2d 310, 116 N.W.2d 142. See also Marshfield v. Cameron (1964), 24 Wis.2d 56, 127 N.W.2d 809. The general rule is subject to two exceptions: (1) It it is the agency's official duty to do so, or the agency will be personally affected if it fails to do so and the statute is held invalid, ¹ and (2) if the issue is of 'great public concern.' ²

The appellants argue the constitutional question is of great public concern, but in the Columbia County Case we pointed out these exceptions apply only to cases between private litigants and a municipality or state agency and not to suits between agencies of the state, or between an agency or municipal corporation and the state. Here, a municipality is suing the state superintendent of public instruction and consequently the City of La Crosse has no capacity to raise the constitutionality of the statute. However, so far as the constitutional question affects the rights of the individual appellants, such question is properly before us.

The appellants argue the determination of school district boundaries is no longer a political or legislative question beyond constitutional limitations but a justiciable question, relying on Gomillion v. Lightfoot (1960,) 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110, and Baker v. Carr (1962), 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663. To the same effect the appellant might well have cited State ex rel. Reynolds v. Zimmerman (1964), 23 Wis.2d 606, 128 N.W.2d 349. But these cases are not applicable unless the appellants can show a constitutional right which has been violated. They state they do not question the wisdom or seek a review of the specific policy question of where a particular school boundary should lie but rather they attach the general legislative policy of revamping school district boundaries over the opposition of the majority of the people involved--a result which apparently has happened in this case under sec. 40.035(3)(a), (b), which provides an attaching order of the county school committee made between July 1 and July 31, 1962, is not subject to a referendum.

If we understand the appellants' argument on this point it is that parents have a constitutionally protected interest in the education of their children. They rely on Meyer v. State of Nebraska (1923), 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, 29 A.L.R. 1446; Farrington v. Tokushige (9th Cir., 1926), 11 F.2d 710, aff'med 273 U.S. 284, 47 S.Ct. 406, 71 L.Ed. 646; and Pierce v. Society of The Sisters of The Holy Name of Jesus and Mary (1925), 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468. These cases involve the control of the did not reach the question of the parents' rights to determine directly or indirectly the location of school districts or their boundaries. We think no constitutional right exists in parents to determine school district boundaries by direct vote or referendum. The established law in Wisconsin affirmed by a long line of decisions is that the determination of school district boundaries is a legislative function, which may be delegated. The districting decision, however, may not be made against the educational interests of the students. See State ex rel. Moreland v. Whitford (1882), 54 Wis. 150, 11 N.W. 424; State ex rel. Joint School District No. 2 v. Sweeney (1899), 103 Wis. 404, 79 N.W. 420; State ex rel. Zilisch v. Auer (1928), 197 Wis. 284, 223 N.W. 123; School Dist. No. 3 of Town of Adams v. Callahan (1941), 237 Wis. 560, 297 N.W. 407, 135 A.L.R. 1081; Zawerschnik v. Joint County School Comm. (1955), 271 Wis. 416, 73 N.W.2d 566; and School Board v. State Superintendent (1963), 20 Wis.2d 160, 121 N.W.2d 900. True, such legislative process is also subject to constitutional limitations. The power may not be exercised arbitrarily or to discriminate and deny equal protection of the laws, but such claims are not made in this case.

However, contention is made that as to appellant Hall who is not a resident or an elector of the city of La Crosse that sec. 40.035 is unconstitutional in denying him equal protection of the laws because he has no voice by ballot over school affairs. Hall lives in the annexed area but has no vote in electing members of the school board. Members of the school board of the city of La Crosse are elected by the common council pursuant to sec. 40.803(1)(b) 2. Provision is made by subs. (1)(a) for the council to appoint at least one member of the board from the attached area which lies outside the city. Assuming appellant Hall has a constitutional right to vote for members of the school board of the school district in which he lives this argument should be addressed to sec. 40.803, not sec. 40.035. The validity of 40.035 dealing as it does only with duties of school board members after election or appointment does not depend upon the validity of sec. 40.803. We find no merit in this argument as applied to sec. 40.035.

It is contended subs. 6 of sec. 40.035 exempts Milwaukee county from provisions of the section and therefore the section violates the constitutional requirement of equal protection of the laws and the section also violates the requirement of the uniformity of county governments in Art. IV, sec. 23, of the Sisconsin Constitution. Under subs. 6 of sec. 40.035, which exempts a county containing a city having a population of half million or more, a city under certain circumstances may annex for all city purposes that portion of a territory which was not operating a high school and which was annexed to the city school system by order of the county school committee. The legislative history of sec. 40.035 makes it clear the language referring to 'section' in the exclusion sentence refers only to subs. 6 and not to the entire section. But even if this exclusion were considered an invalid classification, which we do not, the appellants have no standing to raise the issue since they are in no way affected by it and it cannot be applied to their disadvantage. The exclusion is a discrimination against Milwaukee county and only that county can complain. Pedrick v. First Nat. Bank of Ripon (1954), 267 Wis. 436, 66 N.W.2d 154.

As a result of the exclusion, cities in Milwaukee county cannot change their boundaries by the special annexation procedure of sec. 40.035(6) while cities in other counties can. The appellants contend this result violates the requirement of uniformity of county government . This contention was made in an analogous situation in Zweifel v. Milwaukee (1925), 185...