State ex rel. Foster v. Graham

• Decision Date: 15 May 1884
• Citation: State ex rel. Foster v. Graham, 60 Wis. 395, 19 N.W. 359 (Wis. 1884)
• Parties: STATE EX REL. FOSTER v. GRAHAM.
• Court: Wisconsin Supreme Court

60 Wis. 395

19 N.W. 359

STATE EX REL. FOSTER

v.GRAHAM.

Supreme Court of Wisconsin.

Filed May 15, 1884.

Certiorari.Pinney & Sanborn, for the State of Wisconsin ex rel. Julian A. Foster.

L. F. Frisby, Atty. Gen., for Robert Graham, State Superintendent of Public Instruction.

COLE, C. J.

This is a common-law writ of certiorari issued by this court to review a decision of the state superintendent, affirming certain orders of the town boards of Salem and Brighton, in Kenosha county, which changed the boundaries of school-districts in those towns. After the return was made, the attorney general, on behalf of the state superintendent, moved to quash the writ on the ground that it does not lie to review a decision of the state superintendent. The argument on this point is that the state superintendent is an officer created by the constitution, and that instrument declares that he shall exercise such powers and duties as may be prescribed by law. Section 1, art. 10. The legislature has enacted that any person, conceiving himself aggrieved by any decision made by any town board, altering a school-district, may appeal to the state superintendent, (section 497, Rev. St.;) while another provision declares that the state superintendent's decision on appeals “ shall be final.” Section 166.

Notwithstanding this language in the statute, we entertain no doubt but this court has jurisdiction to review the decision of the state superintendent, and this jurisdiction was exercised in the case of State v. Whitford, 54 Wis. 150, S. C. 11 N. W. REP. 424, recently decided. In that case the office or functions of the writ was discussed, rather than the question of jurisdiction; but this was because we then, as now, considered the jurisdiction of this court in the matter indisputable. It is true, the statute makes it the duty of the state superintendent to examine and determine all appeals which, by law, may be made to him, according to the laws regulating the same, and says that “his decisions shall be final.” But by the use of the word “final” the legislature did not intend that there should be no judicial review of his decisions. His decisions are “final” until set aside by the courts; but those tribunals have the right to determine whether he has violated any provision of law in making his decision. We do not deem it necessary further to discuss the question of jurisdiction. But, again, it is said by the attorney general that this court should not entertain the writ because the alteration of a school-district is a local matter, not affecting interests of the state at large, and that the circuit courts are the proper tribunals to review the action of the superintendent. The reason why we assumed jurisdiction of the writ was because we supposed it would be more convenient for the state superintendent to have the cause heard and determined in this court than to send the case to the circuit. Doubtless we might have declined to issue the writ, but the case seemed to us one where we should take jurisdiction. The motion to quash is therefore denied.

We come now to consider the case on its merits. The counsel for the plaintiff in error insists that the town boards had no jurisdiction to make the orders they did, changing the boundaries of the existing school-districts, because the proper notices were not given to the clerks of the districts which were affected by the change. We think this position is sound, and must be sustained. The statute provides: “Whenever the town board shall contemplate an alteration of the boundaries of a school-district they shall give at least five days' notice in writing to the clerk of the district or districts to be affected thereby, stating the time and place when and where they will be present to decide upon such proposed alteration; and such clerk or clerks shall immediately notify the other members of the board,” etc. By section 415 it is provided that a joint school-district can be altered only by the joint action of the town boards of the towns in which it is organized, “in the same manner that other districts are altered.” The record shows that there were three districts affected by the alteration. School-district No. 7, in the town of Brighton, was the northern district; district No. 5, in the town of Salem, was the southern district; and joint district No. 2 was the central district. The record further shows that a notice was given by the town boards of Salem and Brighton to the “clerk of joint school-district No. 7, of the towns of Salem and Brighton.” As a matter of fact, there was no joint school-district No. 7. But the notice was actually given to the clerk of school-district No. 2, so that the mistake in the...