*1 City оthers, Appellants, Instruc Public State Superintendent Rothwell, * tion, Nos. Respondent. 38.] [Cases 27, 1964. September 29 October * costs, denied, rehearing Motion for on December with *3 there briefs and oral For the were argument William J. Sauer of Crosse. Harold the cause was H. argued
For respondent *4 Persons, with whom on the brief assistant attorney genеral, attorney was George Thompson, general. 40.035, Stats., of reflects the Sec. policy
Hallows, J. the state shall be the state that all within within territory - school schools. Prior to districts operating high June a not a district operating high territory included to, into, or school could be attached created consolidated with the a district a school various pro- operating high by any 40.03, 40.06, 40.07, 40.12, secs. and cedures provided by 1, 1962, which was any territory 40.14. On and after July re- was high included in a district school not operating to, into, or be created consolidated with to attached quired school committee order the county such district by result The оrder such a later than affecting July 1, 1962, to to and was subject made retroactive July was referendum, but not to a to the state superintendent appeal 40.035 and sec. (b). (3) (a) 1962, certain the city outside territory lying
On July to a not been attached district operating of La Crosse had 2, 1962, com- school joint county school. July On high and Vernon called a meeting mittee of Crosse counties La to the La city for 30th to consider attachment July involved in No. 37. district of certain Case territory school order made six school After a an was attaching hearing, to the La Crosse school dis- and of two others districts part Crosse, which un- trict. La city оperates appellants, secs. school 40.80 to city provided by der plan Lee, Stats., Robert Abbott and Harold E. owners property Hall, a and electors of said and city, property-owner Justin of a child school to territory elector and age parent attached, to the state' order supеrintendent appealed instruction. public In Case No. school committee of joint county Crosse, 20, 1962, Vernon, and Monroe on at- counties July was tached area to school district. This order Westby a resident the area attached. On August appealed 1962, the state instruction held an superintendent public lаter informal on each He affirmed the or- hearing appeal. to der Case No. 37 the La Crosse territory city attaching school district and reversed the order the territory attaching to the school district in No. 38 and attached Case Westby school These La Crosse district. territory two orders then for review wеre certiorari brought the circuit court affirmed.
233 whether the of La The city state questions superintendent the of sec. Stats. raise may constitutionality Crosse have the do not the It is contended individual appellants been that such issue. The rule has to raise general capacity the constitu- state cannоt question a agency municipality of a and was discussed Colum- thoroughly statute tionality 17 v. Wisconsin Retirement Fund Wis. (1962), bia County 310, 142. also v. 116 N. W. See (2d) (2d) Marshfield 56, 24 N. W. 809. 127 (2d) (2d) Cameron (1964), If The is to two it is rule general subject exceptions: (1) so, or official to do the will be the agency’s duty agency is if it fails to so and the statute held affected do personally 2 invalid,1 and if the issue is of concern.” “great public (2) The the constitutional is of great argue question appellants concern, in the Case we but Columbia County pointed public to cases between liti- out these exceptions apply only private or state and not to suits municipality agency gants state, or between an or mu- between agency agencies Here, state. is and the nicipal corporation municipality state instruction and con- suing superintendent public raise of La has no sequently capacity However, far so as con- statute. constitutionality of the individual affects rights appel- stitutional question lants, is before us. such question properly the determination school-district argue appellants be longer question boundaries no political legislative re justiciable limitations but a constitutional question, yond 339, 364 81 v. U. S. Lightfoot (1960), on Gomillion lying v. andBaker Carr (1962), 5 Ed. L. (2d) Ct. Sup. To the 7 L. 663. Ct. Ed. (2d) U. 82 Sup. 369 S. cited well have might same effect v. Milwaukee (2d) Hospital Service Associated (2d)W. 271. 109 N. (1961), 13 Wis. Department Taxation Foundation Fulton (2d) N. 285. N. 312. 109 W. 108 W. *6 606, v. Zimmerman 23 Wis. Reynolds 128 (1964), (2d) 16, N. 128 W. 349. But W. N. these are (2d) (2d) cases not unless the can a applicable show constitutional has been which violated. state not They they do right ques- tion wisdom or seek a review the specific policy ques- a tion where school lie particular- boundary but should rather attack the they general legislative policy revamping school-district boundaries over the of the opposition majority of the involved—a result which has people apparently hap- in case this under sec. 40.035 pened Stats., (3) (a), (b), of the which order provides attaching school com- county 1962, mittee made 1 31, between and July not July is sub- ject to referendum. we
If understand the on appellants’ argument this it point have is that parents in constitutionally interest protected of their education children. on They v. rely Meyer Ne 390, 262 S. 625, braska U. 43 (1923), Ct. 67 L. Sup. Ed. 1042, 1446; 29 A. L. R. v. Farrington Tokushige Cir. (9th 710, 11 1926), 284, Fed. affirmed 273 47 (2d) U. S. Sup. 406, 646; Ct. 71 L. Ed. Pierсe v. Society Sisters 510, 571, 268 S. 45 (1925), 1070, U. Ct. L. 69 Ed. 39 Sup. A. R.L. 468. These cases involve the control of the type of education the law prescribed by and did not reach the question parents’ rights determine or indi directly rectly location of school districts their boundaries. We think no constitutional right exists to determine parents school-district boundaries direct vote by or referendum. The established law Wisconsin affirmed line of de long cisions is that the determination of school-district boundaries is a function, legislative which The may delegated. dis- decision, however, tricting not be made may against educational interests of the students.- See State ex rel. More land v. 150, 54 (1882), 424; Wis. 11 N. W. Whitford rеl. Joint School Dist. Sweeney (1899), 404, 420; N. 79 W. State ex Zilisch v. Auer (1928), 197 123; N. W. 223 N. W. N. W. 237 Wis. Dist. v. (1941), School Callahan School Comm. 407; v. Joint County (1955), Zawerschnik 566; Board v. and School N. (2d) 271 Wis. 73 W. N. 121 W. 20 Wis. State Superintendent also True, subject is such legislative process not be exercised limitations. may constitutional power and deny protection or to discriminate equal arbitrarily in this case. laws, but claims are made such Hall However, is made that as to appellant contention who not a resident an elector is him 40.035, Stats., unconstitutional denying that sec. he has no voice ballot laws because equal protection *7 has over affairs. Hall lives in the annexed area but school mеmbers of board. Members no vote in the school electing are by of the of the of La Crosse elected city school board (b) to 2. Pro- the common council sec. 40.803 pursuant (1) the to at vision is made sub. for council by (1) (a) appoint least of the board the area which one member from attached Hаll has constitu- lies outside the a city. Assuming appellant the of the tional to vote for members of school board right in which he lives this should ad- argument school district 40.803, The of not sec. 40.035. sec. validity dressed to sec. of it does with duties school board only 40.035 as dealing does not upon after election or appointment depend members no merit in the of 40.803. We find this argument sec. validity as to sec. 40.035. applied Stats., 40.035,
It sub. of sec. exempts is contended (6) there- from of section and the county provisions Milwaukee of requirement section violates the constitutional fore the also violates the the laws and the section equal protection uniformity governments of the county requirement sub. IV, of the Wisconsin constitution. Under sec. art. a containing which a county of sec. (6) exempts more, half million or under city city having population that annex for all city certain circumstances may purposes of a which was not school territory operating high portion was school order and which annexed to city system by committee. The school county legislative history makes it clear to sec. 40.035 “section” referring language exclusion sentence refers sub. and not to only (6) the entire section. But even if this exclusion were consid- not, classification, erеd invalid which do we appellants have no to raise the since are in issue no standing they way it affected and it cannot be to their by applied disadvantage. The exclusion a discrimination Milwaukee against county can county Pedrick v. First Nat. only complain. 66 N. Bank W. (1954), exclusion, As a result of the cities in Milwaukee сounty cannot their boundaries change annexation special Stats., of sec. 40.035 while procedure cities in other (6), counties can. The contend this result violates the uniformity requirement county government. This con- tention was made in an situation analogous Zweijel v. Milwaukee 201 N. W. where- in it was out annexation of pointed to a territory city was no of the system of town or part county government. its power change line ordi- boundary nance some under circumstances as in sec. provided 40.035 refers to cities and does not (6) concern itself with the form within county government IV, of sec. meaning art. of the constitution.
The final issue raised is by whether the appellants pro- cedure followed the state by superintendent his making orders violated due On of the process. orders appeal joint school county committees the state superintendent held an informal or conference but hearing based his decision not only evidencе and information upon at such produced facts, also data, but hearings and upon information within own his and and within the knowledge experience knowledge of his staff and communicated to him. The con- tend cannot so act superintendent and in determining
237 school is either acting school boundaries superintendеnt If the or in a legislative capacity. a quasi-judicial capacity due and former, the of fair and play applies doctrine process made at the the record he cannot consider evidence outside in a if is acting legislative the superintendent hearing such require court-type hearing, which does not capacity, is an delegation legislative power. function improper horn consider either dilemma We do not proposed judi The of school boundaries not a valid. determination but a function which function legislative cial quasi-judicial to the state by legislature. can delegated Apрeals 40.035, sec. under sub. provided (b) superintendent to' Stats., are applicable appeals governed procedure 40.06 The Ford v. Roth taken under sec. (3). reasoning 489, is 126 N. not well Wis. W. to the circuit from superintendent restricted to appeals There is statute to school- relating court. no requirement to the оf the state duties superin district reorganizations which on requires appeal tendent of instruction public as a necessary he shall hold a formal or trial-type hearing to the his The appeal superintendent, consideration. part determination, in nature is a de novo was conducted which Code, PI of 5 Adm. sec. to the according procedures formal or not court-type hearing. which do require a court-type hearing The does process require legislative the determination of facts and the has for its which purpose of a hearing them. dependent upon purpose rights not determinative function is informative but the legislative the result. the function In this court has said some cases prior not a direct instruction was superintendent public state it was not a legisla- This not mean function.3 did legislative (1925), 185 Horton Brechler State v. Auer, 144; Dist. v. supra; v. School ex rel. Zilisch N. W. Comm., supra. County Callahan, supra; Zawerschnik Joint School
238 tive meant one which could function but to delegated It is true far for as agent performance by legislature. back 1860 Joint School Dist. v. 12 Wolfe, as Wis. 765 this court the term “quasi-judicial” to (*685), applied but while this superintendent’s power, through years to court continued use the “quasi-judicial” phrase spite it held no administrative that growth agenсies, formal was required state court-type hearing super- in his intendent determination school boundaries. School Callahan, Dist. v. School Board v. State supra; Superin- tendent, supra. it contend since used
Appellants certiorari secure a review the circuit court the orders that the doctrine State еx Ball McPhee v. 6 Wis. 94 N. W. and the state applies superintendent was required by common-law due concepts process and fair to hold a play and to base his court-type decision hearing the record at that upon made hearing. mis- True, read Ball Case. when an administrative agency acts in a quasi-judiciаl it must base capacity its decision on upon evidence information findings obtained at a formal or court-type valid notice. hearing upon State ex rel. Cities Service Oil Co. v. Board Appeals (1963), Wis. (2d) 516, 124 N. However, W. (2d) 809. an administrative agency may act a legislative and when so capacity acting it is not due required by process hold formal type its restrict decision hearing to facts in the appearing record unless required by statute. Whether the review is taken certiorari or by under ch. petition Stats., does these change rules. ex Whitford, State rel. Moreland supra; v. rel. Horton Brechler, supra; Callahan, supra; School Dist. v. and Zawer County Comm., schnik v. Joint School supra. *10 is cer- review taken by it that because Nor does follow con- the before state superintendent tiorari the proceedings 227.13, within the sec. a contested case meaning stituted before contested as “a Stats. A case defined proceeding law, which, the legal in after hearing required by agency to or such any party proceeding duties rights, privileges are or . . .” Sec. 227.01 (2). determined affected directly in we the two cases out Recently pointed fair-play provisions 227, cross- to notice of right ch. relating public hearing, that the decision must be examination аnd the limitation record, in are on matters placed applicable based decisions made in the exercise function but legislative are in their to contested limited cases. We agree application that in with the trial court school-district determining boundaries on under sec. 40.035 the state appeal superin- tendent does not violate due in his de- at process arriving cision on facts information not at by relying produced for a without hearing providing court-type hearing. affirmed. By Judgments Court.— was filed December 1964: opinion following motion rehearing). Appellants’ {on Per Curiam for out in their motion for rehearing points brief support that their contention that sec. it was not original but rather Stats., city denies due process Thus the to its citizens. city it denies due process issue its representative capacity. this constitutional raised Hospital in Associated was recognized This distinction 447, 468, 469, (2d) v. Milwaukee (1961), Service (1962), (2d) Highway Comm. 5 Ashwaubenon 498; Comm. (2d) Ashwаubenon v. Public Service N. 115 W. (2d) 126 N. W. (2d) 22 Wis. N. W. 239a
109 N. W. which held that a when city acting such a representative raise capacity may question of a state statute unconstitutionality when the issue present- ed is one of great public concern interest.
However, the reason for such an exception disappears when еlectors and of the are taxpayers city to the parties action. such there is circumstances no for necessity Under city Here acting representative two elec- capacity. tors and of La taxpayers Crosse are parties to the action and have raised identical constitutional issue *11 raised city.
The motion for is denied with costs. rehearing