2 Wis. 2d 263 | Wis. | 1957
The order of the joint county school committee was issued under sec. 40.03 (1), Stats., which provides that ‘ "orders of the committee providing for the reorganization of school districts shall not take effect until July 1st following the recording of the order.”
“40.075 Annexation to common school districts operating high schools. Territory not in but adjoining a district which holds an annual meeting and operates grades 1 to 12 may be annexed thereto upon a petition therefor presented to the board of such common school district signed by 10 per cent of the electors in such adjacent territory. If the board approves the petition, the matter shall be submitted by said board to a meeting of the electors of said territory held in accordance with the provisions of sec. 40.14 (2). If a majority of the electors present at said meeting are in favor thereof, said territory shall thereby be annexed. The board shall issue an order to that effect, copies of which shall be filed as provided in sec. 40.03 (3). If the school of the area to be annexed is in session, the order shall take effect on the next July 1st. If the school is not in session, the order shall take effect at once. Any order of the school board to which attachment is made shall be presumptive evidence of the facts recited therein, and of the validity of all proceedings preliminary thereto.” (Emphasis supplied.)
Competition between statutory proceedings which cannot both succeed has been resolved by a rule that “the movement first started has the right of way.” In re Incorporation of Village of St. Francis (1932), 208 Wis. 431, 434, 243 N. W. 315. There a proceeding was started for annexation of certain territory by Milwaukee. On April 20, 1931, an annexation ordinance was adopted, which, by virtue of statute, would complete the annexation ninety days after passage. On May 1st, an application was made for incorporation of the village of St. Francis, including the area to be annexed and other territory. This court decided that the incorporation proceeding must fail because it deemed that the legislature did not intend that the procedure it had provided for in
In Oak Park School Dist. v. Callahan (1944), 246 Wis. 144, 16 N. W. (2d) 395, this court dealt with competition between statutory alteration of a school district by a town board and statutory attachment of a school district of a certain class by the state superintendent. The town board had given a required notice of its intention to consider alteration of the district before the state superintendent issued an order attaching it to another. This court decided that the state superintendent had no power to act after the town board gave its notice.
Appellant urges us to hold that the legislature intended that an order under sec. 40.075, Stats., should go into effect on the date prescribed by the legislature notwithstanding the earlier issuance of a county school-committee order. We see nothing in the statute from which to glean such intent or which compels a departure from the theory of the St. Francis and Oak Park decisions. Sec. 40.03 (1) and sec. 40.075 each have a provision determining the date upon which an order is to go into effect. It is apparent that the purpose of both these provisions is to avoid the disruption which results when districts are altered while school is in session. It is true that the provision in sec. 40.075 had greater flexibility because an order entered during the summer vacation could go into effect immediately, but this does not amount to a declaration that such an order shall take precedence over a school-committee order previously entered.
Appellant directs our attention to an opinion of the attorney general, 44 Op. Atty. Gen. 54, rendered to the senate at its request March 23, 1955, some two months before introduction of the bill which became ch. 554, Laws of 1955, and sec. 40.075, Stats. 1955. It appeared that a joint school
We do not agree. Whether correct or not, the attorney general’s opinion dealt with sec. 40.07, Stats., under which a consolidation becomes effective as soon as the proceeding is completed and the consolidated district organized. The same is not true of sec. 40.075 except for orders issued when school is not in session. We are unable to read a legislative preference for a proceeding under sec. 40.075 out of the provision which delays effectiveness until July 1st, unless the order is issued during the summer vacation. If the legislature intended to permit a proceeding under sec. 40.075 to defeat a school-committee order it would have said so. If it were really intended that an order under sec. 40.075 take precedence over a school-committee order previously entered, there would be no conceivable reason for providing that an order entered during the school session would not take precedence, but one entered during vacation would do so.
By the Court. — Judgment affirmed.