State ex rel. Stengl v. Cary

• Decision Date: 20 June 1907
• Citation: 112 N.W. 428,132 Wis. 501
• Parties: STATE EX REL. STENGL ET AL. v. CARY.
• Court: Wisconsin Supreme Court

132 Wis. 501

112 N.W. 428

STATE EX REL. STENGL ET AL.

v.CARY.

Supreme Court of Wisconsin.

June 20, 1907.

Certiorari by the state, on the relation of George Stengl and others, to C. P. Cary, superintendent of public instruction, to review a decision rendered in the matter of the creation of a school district. Order of superintendent creating the school district reversed.

An alternative writ of certiorari was issued August 21, 1906, under the original jurisdiction of this court to the Honorable C. P. Cary, state superintendent of public instruction, requiring the said state superintendent to return the papers, files, and decision in the matter of the creation of school district No. 7 of the town of Ackley, Langlade county, Wis., upon errors assigned in said alternative writ as follows: “(1) That there was no notice, either written or verbal, given or served by the clerks of said school districts Nos. 1, 2, and 5 (out of which said new district was created), or by any other person, to or upon the directors and treasurers of said districts, as provided by law. (2) That no notice, either verbal or written, was given or served to or upon the freeholders or electors affected by the proposed alteration. (3) That the notices served upon the clerks of said district, if served at all, were not legal and did not conform to the statutes, in this: That they did not state or show the contemplated alterations in said districts or the territory detached to form the proposed district No. 7. (4) That said town board failed to meet at the time and decide concerning the alteration of said district, pursuant to notice. (5) That there are no records in the town clerk's office of the return of the service of notices on the several district clerks. (6) That the petition to said town board for the alteration of said school districts and the formation of a new district is irregular, and not in conformity with law, and conferred no jurisdiction on said board to act thereon. (7) That the notice and appeal to said state superintendent from the decision of said board and the papers and proceedings connected therewith are irregular and void and do not conform to law, and conferred no jurisdiction on said officers to act thereon, and are contrary to the affidavits, papers, and evidence in the case.” The superintendent of public instruction considered the appeal on its merits, and reversed the order of the town board refusing to create the new district No. 7, and created the school district in question, consisting of a strip of land 9 1/2 miles long and 1 mile wide, except 1 3/4 miles of this length where it is 1 1/4 miles wide, and 1/4 mile of this length where it is 1 1/2 miles wide. The petition for the writ of certiorari states that notice was served by the town board on the dictrict clerks of school districts Nos. 1, 2, and 5, and the return of the state superintendent shows there was filed with him on the appeal statements or affidavits in the following form: “I, W. B. Heineman, hereby certify under oath that the above is a true copy of notice served on above school clerk at 3 p. m. Dated this 2d day of June, 1906. W. B. Heineman. Subscribed and sworn to before me this 2d day of June, 1906. Charles W. Bruce, Notary Public.” No other proof of service upon any other person or officer appears in the return of the state superintendent. The above proofs do not appear in the records of the town board of supervisors. The appeal from the decision of the town board of supervisors to the state superintendent was taken by one Heineman, and answered by the chairman of the town board of supervisors, Nelson. The school districts affected by the creation of the new district did not appear in the proceedings before the superintendent.T. W. Hogan and Henry Hay, for petitioners.

F. L. Gilbert, Atty. Gen., and F. T. Tucker, Second Asst. Atty. Gen., for respondent.

TIMLIN, J. (after stating the facts).

This is not a case for the original jurisdiction of this court. The rules governing the exercise of that jurisdiction will be found in Re Court of Honor of Illinois, 109 Wis. 625, 85 N. W. 497. But the alternative writ having been issued and return made, and no objection taken to the jurisdiction of this court by either party; and, the case having been argued and submitted upon the questions arising on said writ and return, this court exercises a discretion to entertain the cause. State v. Graham, 60 Wis. 395, 19 N. W. 359. Future cases of this kind will be for the circuit court. Section 418, St. 1898, provides: “Whenever the town board shall contemplate an alteration of a district they shall give at least five days' notice in writing to the clerk of the district or districts to be affected thereby, stating in such notice 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. No territory shall be detached from one district unless by the same order it be attached to another, and a district may be dissolved by attaching all its territory to other districts.”

In this case there is no proof that the clerk or clerks of districts Nos. 1, 2, and 5 ever gave any notice to the other members of the school board of either of said districts. We do not determine this case upon that omission; but call attention to the mandatory form of the statute in this particular, and the difficulties it might present in practical construction enabling the clerk of the adverse party, by omission of a statutory duty, apparently to nullify the proceeding. Whether omission of such duty on the part of the clerk would have that effect is not here intimated or decided; but attention is merely directed to the peculiar form of the statute and the person upon whom the duty is cast of serving notice upon the other members of the school board. The record here shows no attempt to perform this...