State ex rel. Grotegut v. Wuensch

| Wis. | Jan 30, 1912

Siebecker, J.

In the light of the facts and circumstances shown and from the history of the proceedings to create this new school district, as above stated, nothing appears showing that the orders of the town board creating the new district and apportioning the property were not in accord with the best interests of all persons concerned in the matter. They are assailed only because it appears that the town board failed to obtain jurisdiction to make them by reason of irregularities in giving notice of tbeir meeting to consider the petition. While a challenge to these orders for want of jurisdiction would necessarily result in setting them aside in a proper proceeding as a matter of right, that is not the situation now ' presented. The relators are now called upon to show that the issuance of this writ to review the town board’s proceedings ■should be granted to prevent injustice being done. Admittedly, the relators are not within the two-year period to which the issuance of a writ of certiorari for reviewing the action of town boards in matters of this nature is usually limited. As declared in State ex rel. Dalrymple v. Milwaukee Co. 58 Wis. 4" court="Wis." date_filed="1883-05-31" href="https://app.midpage.ai/document/state-ex-rel-dalrymple-v-milwaukee-county-6604111?utm_source=webapp" opinion_id="6604111">58 Wis. 4, 16 N. W. 21:

“The party who has rights which a court is bound to protect may in all cases bar himself of that right by his laches; and as those who seek to review the judgments and orders of •courts are, as a matter of public policy, required to take the proper steps for obtaining such review within a limited time, . . . there is great propriety in holding that the party who seeks to review and vacate proceedings not strictly of a judicial character, should proceed within a reasonable time to accomplish that purpose or be barred of his remedy.”

To the same effect is Wilson v. Seller, 32 Wis. 457" court="Wis." date_filed="1873-01-15" href="https://app.midpage.ai/document/wilson-v-heller-6601239?utm_source=webapp" opinion_id="6601239">32 Wis. 457.

The question of the town board’s jurisdiction to make the orders cannot be inquired into or determined on an appeal to the state superintendent under sec. 497, Stats. (1898). See State ex rel. Schuette v. Cary, 143 Wis. 83, 126 N. W. 562. To obtain such relief those assailing the action of the town board for want of jurisdiction were required to apply for a writ for that purpose. This they did not do for a period of nearly three years after the orders were made. This left the orders in force and operative, and authorized the residents of the new district to act under them. This they did, and they vigorously asserted in the litigation assailing them on the merits that they were justly made and should be confirmed. In reliance on the action of the town board the people of the district have taken steps for acquiring a school-house site and have contracted to construct a building thereon. They also paid and received from the state the proper portion of the state school moneys, and provided at the district’s expense accommodations and a teacher for one term of school, which was actually held in the district. This condition of affairs, when considered in the light of all the facts and circumstances of the parties, negatives all equitable claims of the relators for permission to prosecute this writ at this late day. We find no grounds upon which to justify this application as an exception to the rule limiting the issuance of a writ to the period of two years from the time the orders were made by the town board, and we feel constrained to deny the relief awarded in the proceeding by the trial court.

By the Oo.wrt. — The judgment appealed from is reversed, and the proceeding remanded with directions to dismiss the' writ.