Village of West Milwaukee v. Area Bd. of Vocational, Technical and Adult Ed. (Dist. 9)

• Decision Date: 02 June 1971
• Docket Number: No. 413,413
• Parties: VILLAGE OF WEST MILWAUKEE, a municipal corp., et al., Plaintiffs-Appellants, City of St. Francis, a municipal corp., et al., Intervening Plaintiffs- Appellants, v. AREA BOARD OF VOCATIONAL, TECHNICAL & ADULT EDUCATION (DISTRICT 9), Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 387

187 N.W.2d 387

51 Wis.2d 356

VILLAGE OF WEST MILWAUKEE, a municipal corp., et al.,

Plaintiffs-Appellants, City of St. Francis, a municipal

corp., et al., Intervening Plaintiffs- Appellants, v. AREA BOARD OF VOCATIONAL, TECHNICAL & ADULT EDUCATION

(DISTRICT 9), Defendant-Respondent.

No. 413.

Supreme Court of Wisconsin.

June 2, 1971.

This is a declaratory judgment action challenging the constitutionality of sec. 38.155, Stats., which provides for the organization and general operation of Wisconsin's system of area vocational education districts. The action also seeks injunctive relief.

In 1911 a pioneering Wisconsin Legislature created a system of vocational education in the state and required all municipalities with populations of more than 5,000 to establish vocational school boards. The members of these boards were appointed by vote of the elected members of the high school boards in the municipalities involved. These vocational school boards had general authority to provide vocational education for students in the municipalities either by establishing vocational schools or by paying tuition for the vocational education of their students in neighboring communities.

In 1965 the legislature enacted sec. 38.155, Stats., ¹ which provided for the general reorganization of the municipal system into a system comprised of area vocational education districts. The statute provided that the state board of vocational, technical and adult education, acting in conjunction with the coordinating council of higher education, was to adopt a master plan of area districts for the entire state. Municipalities, school districts operating high schools, or counties could make application for creation of vocational school districts consistent with the state master plan. If none of these units of government took action to form a district by July 1, 1970, the state board of vocational, technical and adult education was authorized to include all areas of the state within those districts provided for by its master plan. Upon creation of a new area vocational school district the old municipal vocational school districts were eliminated and their assets transferred to the new district.

Pursuant to the provisions of sec. 38.155, Stats., the state board adopted a master plan providing for 18 area districts in the state. Milwaukee county was designated as District 9. Until 1969, no school district, municipality, or the county made application for the creation of an area district in Milwaukee county. In that year the school boards of the city of Milwaukee, the city of Cudahy, and Joint School District No. 1, West Allis-West Milwaukee, made application to be included in an area district. The application was approved, although the other municipalities in Milwaukee county did not join in the petition. By order of the state board, District 9 came into existence on July 1, 1969, and included areas within the jurisdiction of the schools boards who had made application.

On February 10, 1970, effective July 1, 1970, ² the state board authorized the inclusion clusion within District 9 of virtually all the school districts in Ozaukee county on the basis of their voluntary application, pursuant to sec. 38.155(3)(b), Stats. Thereafter, all areas in Milwaukee county which did not voluntarily make application to the board were advised that on July 1, 1970, they would be included within District 9. (Plaintiffs are such.)

When District 9 was created on July 1, 1969, the presidents of the participating school boards appointed six members to the district board, pursuant to sec. 38.155(5), Stats. The membership of the district board was not changed when the nonvoluntary areas were incorporated into district 9.

On June 30, 1970, the village of West Milwaukee and the city of South Milwaukee commenced a declaratory judgment action challenging the constitutionality of sec. 38.155, Stats., as it relates to the creation and operation of District 9. On October 7, 1970, the cities of St. Francis, Oak Creek, Wauwatosa, and the villages of Bayside, Brown Deer and Greendale joined the action as intervening plaintiffs. On October 20, 1970, defendant demurred to the complaint on the grounds that it did not state a cause of action. On December 28, 1970, Rudolph A. Meszaros of the city of South Milwaukee, John P. McDonald of the village of Bayside, Earl McGovern of the village of Brown Deer, Joseph Gumina of the village of Greendale, and Charles G. Gerlach of the city of Wauwatosa, joined the action as intervening individual plaintiffs.

On that date all the plaintiffs joined in a motion that the demurrer of the defendant be sustained. The motion notes that the uncertainty of the status of the various districts caused by the pending action was having an adverse effect on the borrowing power of the various districts, and that appeal was certain regardless of the result. All the plaintiffs urged the court to sustain the demurrer on the basis of State v. Stehlek, ³ which held that unless a regularly enacted statute appears unconstitutional beyond a reasonable doubt, an inferior court should assume the statute is constitutional until the contrary is decided by a court of appellate jurisdiction. ⁴

On January 6, 1971, the circuit court for Milwaukee county entered an order sustaining the demurrer. From this order all plaintiffs appeal.

Peregrine, Marcuvitz, Cameron, Braun & Peltin, Milwaukee, for plaintiffs-appellants; Hugh R. Braun, Milwaukee, of counsel.

Quarles, Herriott, Clemons, Teschner & Noelke, Milwaukee, Robert W. Warren, Atty. Gen., John William Calhoun, Asst. Atty. Gen., for defendant-respondent; James A. Urdan and Steven R. Duback, Milwaukee, of counsel.

Goldberg, Previant & Uelmen, Milwaukee, amicus curiae on behalf of Wis. State AFL-CIO, Milw. Bldg. and Construction Trades Council and Milw. Co. Labor Council.

WILKIE, Justice.

Before reaching the issues raised on the merits which go first to the constitutionality of sec. 38.155, Stats., and second to whether there was compliance with the requirements of that section when the various corporate municipal appellants were added to District 9, we must consider the threshold questions raised by the respondent as to plaintiffs' standing to bring this action and to raise the constitutional issues.

1. Standing of Plaintiffs.

Respondent contends that the corporate municipal appellants in this case have no standing to bring the present action since they are not the real parties in interest. We agree.

In State ex rel. City of Sheboygan v. County Board of Sup'rs of Sheboygan County, ⁵ the city of Sheboygan sought judicial review of the action of the county board in levying a tax for highway purposes; this court held the city had no standing to maintain certiorari to set aside the tax.

'The city was only one of the agencies through which the county collected the tax from the individual taxpayer resident of the city. The city had no such interest in the validity of this tax as to authorize it to maintain an action to set it aside. The tax does not affect the revenues of the city in the least. The city's property is not subject to taxation. But the tax does, immediately and directly, affect each taxpayer to the amount of his tax. The general tax is not a debt against the city, but is a direct charge upon the taxpayer. The city was not the real party in interest.' ⁶

In In re Application of Racine ⁷ this court held the city of Racine had no standing to seek to enjoin the enforcement of a gasoline tax, and in Appleton v. Outagamie County, ⁸ this court held the municipality had no standing to seek the restraining of its treasurer from paying over to the county taxes collected but allegedly illegal.

Here it is plain from the statute that the municipalities are only the collectors of the taxes levied by the district boards against the property of their citizens. ⁹ In addition, all of the challenges raised on this appeal are to matters affecting taxpayers personally, not the municipalities as such, e.g., representation, power of district boards to tax, etc. Respondent also challenges the standing of the appellants-municipalities to raise the constitutional challenges in this action against a state agency, relying on this court's decision in State ex rel. La Crosse v. Rothwell. ¹⁰ In that case the city of La Crosse and other individual plaintiffs brought an action in the circuit court for Dane county for review by way of certiorari of an order joining certain territory lying outside of the city of La Crosse to the La Cross city school district. The constitutionality of the statute authorizing such action was challenged. The following statement of the court in that case is in point:

'The state superintendent questions whether the city of La Crosse may 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 Wisconsin 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, and (2) if the issue is of 'great public concern.'

'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...