State ex rel. Schuette v. Cary

SibbecKER, J. See. 497, Stats. (1898), provides: “Any person conceiving himself aggrieved by any decision made by any school district meeting or by any town board in forming or altering or in refusing to form or alter any school district, or by any other thing done by any officer or board under the provisions of this chapter, may appeal to the state superintendent. Such appeals shall be taken and heard in the manner prescribed by him and he shall make and file his decision within thirty days after the hearing thereof is closed. The decision appealed from shall be operative until the same shall be reversed; and no decision on appeal to said superintendent made by him after the lapse of thirty days from the-time the hearing thereof is closed shall be effectual.” The trial court held that the superintendent’s decision annulling the order of the town board was not made within thirty days from the time the hearing on the appeal before him closed, and was therefore ineffectual. The appellant assails this holding of the trial court upon the grounds that the statutory provision, to the effect that the superintendent “shall make and file his decision within thirty days after the hearing thereof is closed,” is merely directory, and further, that, if it be a mandatory provision, the face of the record fails to show that the superintendent’s decision was not made within this thirty-day period. We cannot hold this provision of the statutes directory, in view of the legislative declara [88] tion. that tbe town board’s decision shall be operative until reversed by tbe superintendent, and that no decision by tbe superintendent shall be effectual if made after tbe lapse of thirty days from the time tbe bearing of tbe appeal closed. This shows a clear legislative intent that it shall be imperative on tbe superintendent to make bis decision within thirty days after the closing of tbe bearing before him. This legislative action leaves no room for a claim that tbe legislature contemplated that a decision might be rendered after tbe thirty-day period rather than that no decisión should be made. On tbe contrary, tbe clear inference is that they intended to negative this by expressly providing that, if tbe decision should not be made within the prescribed time, then no effectual decision could be made. These conditions and provisions make tbe statute mandatory in terms. State ex rel. Cothren v. Lean, 9 Wis. 279; State ex rel. O'Neill v. Trask, 135 Wis. 333, 115 N. W. 823. Tbe contention that the decision was made within tbe thirty-day period after the bearing on appeal before tbe superintendent bad closed is based, on tbe grounds that under tbe rules of procedure prescribed by tbe superintendent for tbe prosecution of these appeals there is no provision declaring when tbe bearing thereof shall be deemed closed, and that tbe superintendent at no time declared it closed before be made bis decision. These rules of procedure contain no provision expressly declaring when a bearing shall be deemed closed within tbe purview of tbe statute fixing tbe time for him to render his decision thereon. Tbe statute provides that appeals shall be beard in tbe manner prescribed by him. This bearing manifestly embraces the steps taken and tbe acts done by tbe parties to tbe appeal in presenting to him the action of the town board, together with tbe facts and law relevant to tbe controversy. Tbe bearing then must be closed when tbe last step has been taken by tbe parties for submitting tbe controversy to the superintendent. We must there [89] ■fore look into the record to determine wbat was the last thing •done in presenting this appeal to tbe superintendent. In the instant proceeding it consisted in the filing of the answer on August 30, 1901. Nothing was done thereafter by any of the parties to this proceeding. This act, therefore, operated to close the hearing on appeal before the superintendent, and all that remained was the rendition of his decision, which was made on July 2, 1908. This was ten months after the hearing had thus been closed, and long after the time had expired within which the statutes empower him.to make an •effectual decision in the matter. It was therefore wholly ineffectual, and left the town board’s order in force. The trial court properly held that the superintendent’s decision .reversing the action of the town board was null and void. It is furthermore urged that the trial court should have sustained the superintendent’s decision reversing the town board’s orders, because the record fails to show that the town board obtained jurisdiction in the proceeding. It is averred that there is nothing to show that the board gave the clerk of the school district to be affected five days’ notice in writing of the time and place of meeting for the consideration of the contemplated division of the district. See State ex rel. Stengl v. Cary, 132 Wis. 501, 506, 112 N. W. 428. An inspection of the record presented on appeal discloses that neither the original papers and files on which the town board acted, nor copies nor proof of them, were embraced in the appeal papers before the superintendent. It cannot be ascertained from the record whether or not this notice was given to the district clerk. In this condition of the proceeding no adjudication respecting the alleged irregularity could be had, were it a proper subject of inquiry on certiorari for review of the action of the superintendent. It is, however, obvious that, in reviewing the proceeding before the superintendent, the question of the town board’s jurisdiction cannot be inquired into, because the superintendent has no power or au90 tboritj imder sec. 497, Stats. (1898), to determine tbat question. Tbe inquiry here can embrace only such questions as. are involved in a determination as to whether the superintendent made an effectual decision within the power conferred on him. The field of his authority does not include a review by him of questions of a town board’s jurisdiction to make the order appealed from. The trial court properly refused to consider and determine whether or not the town board had had jurisdiction in the matter. We deem it appropriate to call attention to the fact that the rules of procedure prescribed by the state superintendent for the hearing of these appeals do not prescribe that the papers, files, and records in the proceedings of the school district or school board should be submitted with the appellant’s statement, the appellee’s answer, or in any other manner. It seems that these documents and records should be returned «to enable him to ascertain whether he should entertain on its merits the appeal for a review of the order appealed from, lie is without power to adjudicate upon the question of the regularity of the procedure before the board going to its jurisdiction, but he should look into the record of the proceedings to ascertain whether his powers for a review of the- ' merits of the order appealed from can be legally invoked. By the Court. — Judgment affirmed.