113 Wis. 107 | Wis. | 1902
Tbis, is an appeal from a judgment superseding and dismissing a writ of certiorari issued by tbe trial court to tbo supervisors of tbe town of Clifton, in Grant county, commanding tbem to certify and return to that court all tbe files, papers, entries, and orders filed or used in making or attempting to make an order to detacb certain tracts of land from school districts Nos. 2, 3, and 8 of said town, and out of tbe lands so detached to create two new districts, to be known as school districts Nos. 3 and 9.
It is claimed by tbe defendants that tbe writ of certiorari was misdirected, in that it runs to tbe supervisors of tbe town, instead of tbe town clerk. But tbis court has repeatedly held, in effect, that service upon tbe town clerk would have been a nullity, since “a town board is a permanent body, and when its acts are sought to be reviewed on certiorari tbe writ should be directed to and served on its members as such board.” State ex rel. Graff v. Everett, 103 Wis. 269; State ex rel. Clancy v. McGovern, 100 Wis. 666; State ex rel. Tibbits v. Milwaukee, 86 Wis. 376.
Tbe verified petition for tbe writ and tbe writ allege that tbe supervisors were without jurisdiction to so alter tbe school districts, for several reasons,. among which are that they bad failed “to give tbe proper notice to tbe freeholders and electors to be affected by tbe proposed alteration,” and because they bad failed “to give notice as required by law to tbe clerks of tbe several districts affected by tbe contemplated change,” and because “tbe several clerks of tbe districts proposed to be changed” bad failed “to give notice to tbe other members of their respective boards, as required by law,” and because tbe town board bad failed “to meet and decide” concerning tbe alteration of such districts pursuant to notice. Tbe motion of tbe defendants to supersede tbe writ must be regarded, in effect, as a demurrer toMhe relation ; and hence as admitting tbe facts therein alleged. State ex rel. Dalrymple v. Milwaukee Co. 58 Wis. 4, 6; State ex
The question recurs whether the failure to give any of such notices prevented the supervisors of the town from acquiring jurisdiction. The statute provides that:
“Whenever the town hoard 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 he affected thereby, stating in such notice when and where they will he present to decide upon such proposed alteration; and such clerk or clerks shall immediately notify the other members of the hoard.” Sec. 418, Stats. 1898.
Under that statute it has been held by this court that:
“A town hoard has no power to alter the boundaries of a school district unless proper notice is given. The giving of such notice will not he presumed; nor is the order of the hoard, reciting that due notice was given, prima facie evidence of the fact; nor can the officers of the district waive the notice.” State ex rel. Foster v. Graham, 60 Wis. 395.
And again, it was held that:
“The hoard acquires no jurisdiction to make the change unless the giving of such notice he authorized at a meeting of the board duly held.” State ex rel. Graff v. Steele, 106 Wis. 475.
That the town hoard had no jurisdiction • is thus determined.
The trial court did not pass upon the question of jurisdiction, hut superseded and dismissed the writ upon the sole ground that the relator “had an adequate remedy by statutory appeal” to the state superintendent, under sec. 497, Stats. 1898. In support of such ruling counsel rely upon Gregory v. Dixon, 7 Wash. 27. In that case the writ was issued to review the action of the county superintendent of schools in establishing a new school district. The writ was quashed on the ground that the statute gave a right to review such aetidn on appeal to the hoard of county commissioners.
By the Oowrt. — The order and judgment of the circuit court are reversed, and the cause is remanded with direction to overrule the motion to supersede the writ, and for further proceedings according to law.