State ex rel. Hebert v. Carlson

SiebecKEr, J. It is urged tbat tbe certiorari proceeding should have been dismissed because tbe writ was not directed to tbe proper party. Tbe argument is tbat tbe only person on whom the statute could be held to impose the duty of keeping tbe record of tbe proceedings of the joint meeting of tbe town and village boards for the alteration of tbis school district is tbe person who acted as clerk of tbis joint meeting when they met to act in the matter. Pursuant to sec. 2421, Stats. (Supp. 1906: Laws of 1901, ch. 146), tbe writ should be addressed to tbe clerk or clerks of tbe towns and villages interested in tbe proceeding to alter the boundaries of tbe dis [588] trict. Tbe clerk of tbe village of Unity acted as clerk of tbe joint meeting of tbe town and village boards, and as sucb clerk acted as clerk at this meeting. He bad custody of tbe records and turned tbem over to bis successor in office, who was a party to tbe writ and made return of tbe records as witbin bis official custody. Tbis makes bim a proper party and suffices to sustain tbe proceeding. Hence tbe court properly refused to quasb tbe writ for misdirection. It is contended that, it appears from tbe return that tbe proceedings were irregular and void for want of notice being given as required by secs. 418 and 419a, Stats. (Supp. 1906), to tbe clerks of tbe school districts affected by tbe proceedings of tbe joint meeting of tbe town and village boards in altering tbe boundaries of tbe district, because no copies of tbe order attempting to alter sucb boundaries were recorded or filed in tbe offices of tbe clerks of tbe districts interested, and because tbe required notices of tbe time and place of tbe meeting to consider tbe application for alteration were not served on tbe members of tbe town and village boards, which meeting is required to be held at tbe school bouse of tbe joint distinct unless some other convenient place be designated. It is manifest that tbe requirements of tbe statutes respecting tbe giving of notice were not complied with, and that sucb omission renders tbe attempted proceedings and tbe alteration of tbe district void. State ex rel. Bidgood v. Clifton, 113 Wis. 107, 88 N. W. 1019; State ex rel. Stengl v. Cary, 132 Wis. 501, 112 N. W. 428. Tbe trial court held that tbe relators, Hebert, Nelson, and Bruer, as taxpayers and residents of tbe old districts having children who attended school, were not sufficiently interested in tbe determination altering tbe districts to entitle them to institute tbe certiorari proceedings. They were not made parties to tbe record of tbe proceeding attempting to alter tbe district. It is apparent that tbe town and village board members, who attempted to make tbe alteration, took no step— naturally they would be averse — to test tbe validity of their [589] action, in. a certiorari proceeding. Nor did the boards of the school districts interested take any step to inquire into the validity thereof. Unless, then, the resident taxpayers and parents of children of school age of the district could act in the matter it is evident they would be remediless under the facts and circumstances shown. The interest of resident electors and taxpayers in school district affairs pertaining to the creation and alteration of districts was well expressed in the opinion of this court in the case of State ex rel. Foster v. Graham, 60 Wis. 395, 19 N. W. 359, wherein Mr. Chief Justice Cole, in discussing the object and purpose of the notices required to be given the district clerks and the members of the school boards, states: “In this way, presumably, information in regard to the proposed alteration will come to the knowledge of the people of the district, who can have an opportunity to express their views upon the alteration before the town boards when they meet to decide upon it. This is obviously the intent and purpose of having the notices given. The formation, alteration, and dissolution of school districts are matters which vitally concern the people, and in which they take a most lively interest.” When such interest also involves that of a taxpayer of the district, whose children of school age are affected in their school facilities, it manifestly presents a case of real and direct interest in the matter which may be seriously injured by the action of the town board. The relators as resident taxpayers of the district have shown that they have such an interest, and this entitles them to invoke the remedy of cer-tiorari..1 Their complaint brings them within the principle declared in State ex rel. Milwaukee Med. College v. Chittenden, 127 Wis. 468, 107 N. W. 500, where the court declared: “It is not an absolute essential to competency in such cases that the petitioner should be a party to the record in the proceeding sought to be reviewed, nor necessary that he should be the party wronged, as regards a proper citation being essential to jurisdiction of the subject matter.” [590] State ex rel. Graef v. Forest Co. 74 Wis. 610, 43 N. W. 551, is cited, where certiorari to test the validity of the county board’s action was sustained at the instance of a taxpayer. In the following cases certiorari proceedings to review the action of town boards for altering school district boundaries were instituted by residents of the districts: State ex rel. Graff v. Steele, 106 Wis. 475, 82 N. W. 295; State ex rel. Bidgood v. Clifton, 113 Wis. 107, 88 N. W. 1019; State ex rel. Foster v. Graham, 60 Wis. 395, 19 N. W. 359. The right to institute certiorari proceedings in this case seems well sustained upon principle and in practice, as shown by the foregoing adjudications. See, also, Lutien v. Kewaunee, 143 Wis. 242, 126 N. W. 662, 127 N. W. 942, and sec. 497, Stats. (1898), which entitles residents of the districts affected to an appeal in such a proceeding if they deem themselves aggrieved. The trial court erroneously held that the relators suffered no injury entitling them to invoke the aid of a court to test the validity of the proceedings to alter the districts. In arriving at this conclusion the court took the view that,, within the holding in the cases of State ex rel. Sullivan v. Drake, 130 Wis. 152, 109 N. W. 982; State ex rel. Skogstad v. Anderson, 130 Wis. 227, 109 N. W. 981; and State ex rel. Milwaukee Med. College v. Chittenden, supra, an enforcement of the decision altering the district would not involve any special, immediate, and direct injury to the relators’ interests. This, for the reasons stated above, cannot be sustained. The claim that the relators were guilty of laches is not sustained. They proceeded with due diligence after notice of the attempted action by the town and village boards. The fact that the first writ was quashed does not avail to charge them with unnecessary delay in instituting 'this, the second proceeding to review the action of the boards. The trial court properly exercised its discretion in awarding the writ. By the Court. — The judgment appealed from is affirmed.