State ex rel. Zilisch v. Auer

• Decision Date: 07 November 1928
• Citation: 197 Wis. 284,221 N.W. 860
• Parties: STATE EX REL. ZILISCH ET AL. v. AUER, SCHOOL DISTRICT CLERK.
• Court: Wisconsin Supreme Court

197 Wis. 284

221 N.W. 860

STATE EX REL. ZILISCH ET AL.

v.AUER, SCHOOL DISTRICT CLERK.

Supreme Court of Wisconsin.

Nov. 7, 1928.

Appeal from an order of the County Court for Jefferson County; John G. Conway, Judge. Affirmed.

Alternative writ of mandamus served on April 16, 1928, on relation of G. F. Zilisch, C. J. Banker, Fred Kelling, C. F. Kopp, and William Weber to secure the detachment of territory from a school district. From an opinion and decision entered June 29, 1928, the defendant appealed.

Section 40.85 of the Statutes of 1927 does not apply to any school district unless it is one that maintains a high school, other than a union free high school, and also one that consists of territory both within and without the corporate limits of any city or village. It provides in substance that any portion of such district lying outside the limits of any such city or village, which is adjacent to another school district, shall be detached whenever at least 75 per cent. of the electors and the owners of more than one-half of the taxable property in the portion of the area sought to be detached shall sign and file with the clerk of such district an application for the detachment of such territory. The statute makes it the duty of the clerk of such district upon the filing of such petition to call a joint meeting of the school board and the town boards of the towns in which the territory to be detached is located. At such meeting these boards are required to make an order detaching such territory. The only discretion allowed is that town boards are given the power to determine whether the detached territory shall be attached to an existing district or created into a new district, in case it has property with an assessed valuation of at least $75,000.

In case the school district clerk does not call such meeting, the petitioners may appeal to the county superintendent of schools, whose duty it is to call a joint meeting of the school board and the town board or boards, at which meeting the order of detachment and the order attaching the territory to an existing district or creating a new district must be entered, if it is found that the applicants have complied with the requirements of this statute. The act also provides for an appeal from these orders to an appeal board made up of members of the town and county boards who reside outside the detached area.

Joint school district No. 8, of which the defendant is district clerk, is composed of portions of the towns of Aztalan and Farmington and all of the village of Johnson Creek in Jefferson county. The relators and others desiring to have a portion of the school district in which they reside detached from the joint district took the steps prescribed by section 40.85 of the Statutes relating to the detachment of such territory. The clerk of the school district did not call a joint meeting of the town and school district boards as required by this statute. The relators then appealed to the county superintendent. The clerk did not file the papers relating to such detachment of territory with the county superintendent as required by this statute.

The relators then sought to compel the filing of such papers by securing an alternative writ of mandamus. The defendant moved to quash the writ. This motion was overruled by the trial court in a decision, the closing paragraph of which was as follows:

“It is my opinion and decision that section 40.85 of the Statutes is valid and constitutional; that the alternative writ of mandamus herein was properly issued; that defendant's motion to quash should be denied; and that, if defendant does not file a return to said alternative writ of mandamus herein, within ten days, a peremptory writ of mandamus, as prayed for by the petitioners, should be issued.

Let judgment be entered accordingly.”

This appeal was taken from this portion of the decision.Olin & Butler, of Madison (R. M. Rieser and B. H. Stebbins, both of Madison, of counsel), for appellant.

Skinner & Thauer, of Watertown, and Bogue & Sanderson, of Portage (Walter H. Bender, of Milwaukee, of counsel), for respondents.

STEVENS, J.

1. Motion to dismiss appeal. The relators moved to dismiss the appeal on two grounds:

[1] First. That the “opinion and decision” of the trial court did not constitute an appealable order. The relators concede that an order denying a motion to quash is appealable, but they insist that this is not such an order, but a mere direction that such order should be entered later.

In determining whether any particular form of judicial action is appealable, “it is not the form of the determination but the nature of the adjudication that is to be considered.” Will of Jansen, 181 Wis. 83, 85, 193 N. W. 972 (49 A. L. R. 5). In holding that a similar “opinion and decision” of the county court of Douglas county was appealable, this court said:

“It is its substance and nature, rather than the name given to the proceeding either by court or parties, that must be the criterion in determining the question of appealability.” Will of Pattison, 190 Wis. 289, 296, 207 N. W. 292, 295.

[2] Considering the nature and substance of the trial court's decision, it is clear that it did constitute an appealable order. It determined that section 40.85 was constitutional and valid; that the alternative writ was properly issued; that the motion to quash should be denied; and that the peremptory writ should issue, if a return is not filed within ten days. Both parties treated this “opinion and decision” as an order disposing of the rights of the parties. The relators had judgment entered by the clerk without further order or direction of the court, despite the fact that the clerk had no power to enter such judgment without an order of the court. If this “opinion and decision” did not constitute such an order, the judgment was entered without authority.

[3] Second. The motion to dismiss is also based on the ground that, at the time this appeal was taken in the name of Otto Auer as school district clerk, he had ceased to be the clerk of the district.

This court has jurisdiction of the subject-matter involved in this appeal. The appeal was one that was authorized by statute to be taken from the trial court. The record was duly filed in this court. The defendant, Auer, was not the real party in interest. The real party in interest was the school district as a whole which had authorized the taking of this appeal at its annual meeting. The defendant, Auer, was made party defendant solely in his official representative capacity because he had custody of the appeal papers which it was sought to have transmitted to the county superintendent.

While this case was pending in this court on appeal the relators served a supplemental case. They also appeared and opposed a motion to advance the cause for an early argument and stipulated in open court that the question presented on this appeal should be confined to the constitutionality of section 40.85 of the Statutes, without making objection to the jurisdiction of this court by motion to dismiss.

Under the provisions of subdivision (1) of section 269.51 of the Statutes, by participating in such proceedings before making this motion to dismiss, the relators waived the objection that the appeal was not taken in the name of the person who occupied the office of clerk of the school district at the time of the appeal. Pursuant to the provisions of this section the motion to substitute the name of the present clerk for that of Mr. Auer is granted without terms. The motion to dismiss the appeal is denied.

[4] 2. The fundamental question presented by the case on its merits is whether section 40.85 of the Statutes is in conflict with the mandate of the Constitution of Wisconsin that--

“The Legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable.” Constitution, § 3, art. 10.

The problem presented is whether the uniformity required by this section relates to the method of establishing school districts or to the schools maintained therein after districts have been established. If the uniformity relates to the method of establishment, we do not see how this statute can be sustained. On the other hand, if the requirement of uniformity applies only to the schools that are maintained in districts after they are created, the statute is a valid legislative enactment.

It is significant that this constitutional provision applies to “the establishment of district schools,” not to the establishment of school districts. “Induction into the family of local governments is quite a different thing from exercising the functions of such government after having been thus inducted. The one involves action prior to reaching the system, the other implies action after becoming a constituent part of it.” Chicago & Northwestern Ry. Co. v. Langlade Co., 56 Wis. 614, 623, 14 N. W. 844, 848.

An examination of the debates in the conventions that framed our present Constitution and the Constitution of 1846 (which contained a similar provision) discloses that the members of those conventions, when they were framing the article relating to schools, were concerned, not with the method of forming school districts, but with the character of instruction that should be given in those schools after the districts were formed--with the training that these schools should give to the future citizens of Wisconsin.

Viewing the terms of this constitutional provision in the light of its express terms as well as of the purpose which actuated those who drafted it, we conclude that the requirement as to uniformity applies to the districts after they are formed--to the character of the instruction given--rather than to...