State ex rel. McDiarmid v. Knight

| Wis. | Jun 23, 1920

Vxnje, J.

Sub. (1), sec. 40.01, Stats. 1919, gives to town boards of supervisors, upon petition or their own motion, the power to “alter school district boundaries, and to create, consolidate or dissolve school districts.” But such altered or consolidated districts remain school districts, having the usual powers of an ordinary school district and no more.

Sec. 40.15, Stats. 1919, provides for the creation of consolidated rural schools by the filing of a petition by fifteen per cent, of the electors and the holding of an election of the voters of the district sought to be consolidated, the vote to be canvassed by the school boards of the respective districts, and if’ a majority is cast for consolidation a consolidated rural school district shall be deemed organized. Such district has powers different from that of the ordinary school district, among others that of furnishing transportation to pupils within the district to and from school. Now it is evident that a consolidated rural school district was not formed as the statute requires, and that the town board of supervisors and the committee on common schools had no authority to create such a district. All they could do was to create an ordinary school district.

But it is claimed that that is all they did. If so, then the whole proceedings negative the fact, and to make the proceedings correspond to the fact they would have to be amended by the court. The amendment would have ,to in-elude the petition as well as all subsequent proceedings which call for a consolidated rural school district. Such amendment the court is powerless to make in any case, and especially so upon certiorari, where there must be either an af-firmance or reversal in whole or in part. State ex rel. Nelson v. Emerson, 137 Wis. 292" court="Wis." date_filed="1908-12-15" href="https://app.midpage.ai/document/state-ex-rel-nelson-v-emerson-8189363?utm_source=webapp" opinion_id="8189363">137 Wis. 292, 118 N. W. 836. The petitioners evidently wanted a consolidated rural school district so as to provide for transportation of pupils and to have a graded school. They did not proceed according to statute, and the body they applied to had no power to create what was wanted and what in terms is purported to be created. For that reason the order of the committee on common schools purporting to create a consolidated rural school district was null and void and should in all things have been reversed by the trial court.

Though the order was void for want of jurisdiction and therefore harmless, it may nevertheless be reversed on cer-tiorari. State ex rel. R. Connor Co. v. Wattman, 110 Wis. 312, 85 N. W. 975.

By the Court. — Judgment is reversed, and cause remanded with directions to reverse the order of the committee on common schools for St. Croix county purporting to create Consolidated rural school district No. 1 of the town of Hudson, St. Croix county, Wisconsin.