State ex rel. School District No. 8 v. Cary

Esci-iweeler, J. The defendant, state superintendent of schools, on this appeal contends for two propositions, viz.: first, that he has the power under the statutes hereinafter cited to condemn and order discontinuance of the use of a schoolhouse such as he held the Thirty-sixth street school to be; and second, that he is authorized to withhold the seven-tenths mill tax from this school district so long as it does not comply with his order to build a new schoolhouse in place of the one so condemned. Sec. 517, Stats., entitled “Inspection of school buildings,” provides for inspectors of public school buildings who shall [107] act under tbe directions of tbe state superintendent and under regulations established by bim; tbat whenever complaint is made tbat any public school is in an unsanitary condition or tbat tbe conditions are such as to endanger the life and health of tbe children attending tbe schools, or tbat the schoolhouse is unfit for school purposes, one of such inspectors designated by the said superintendent shall personally investigate and examine the premises and buildings. The following paragraphs are parts of the same statute: “3. Upon such investigation and examination said inspector shall, if conditions warrant it, make an order directing the school board, the board of education, or other ofiicer or officers having control of the school district or school corporation, to repair and improve such building or buildings as may be necessary, and to place said buildings in a safe and sanitary condition; or if said inspector shall deem the schoolhouse unfit for school purposes and not worth repairing he shall state said fact and recite the reason therefor. “4. The said inspector shall file said order in the state superintendent’s office, and cause true copies thereof to be delivered, by mail or otherwise, to the clerk of the district board, . . . “5. The said order shall state the time in which it shall be complied with, and shall take effect from its date, and shall continue in force and full effect until reversed. The decision of the inspector may be appealed from to the state superintendent in the time and manner now provided for taking appeals to said superintendent, and the decision appealed from shall be stayed, pending such appeal. “6. Whenever any school district . . . shall refuse to comply with the order of said inspector within the time heret-in specified, such school district . . . shall forfeit absolutely its apportionment of the fund derived from the seven-tenths mili tax, provided for in section 1072a of the statutes, and amendments thereto, and shall continue to so forfeit its regular apportionment of such fund until there is full com.pliance with the requirements of said order, unless the electors of said school district shall vote to instruct the school board to close the district school and provide transportation and tuition for all children of school age in the district de [108] siring to attend school at some neighboring school or schools, as provided for in section 49 Qq of the statutes. “7. Nothing in this section shall be deemed to interfere with the operation of the provision of subsection (3) of section 461 of the statutes, relating to the duties of county superintendents of schools, or with the provisions of section 14186 of the statutes, relating to the inspection and regulation of the sanitary conditions of schoolhouses by boards of health.” The substantial point at issue between the parties in this case arises from the construction that should be given to sub. 3, above quoted. An examination of its language alone and in connection with the surrounding sections leads us to the conclusion that it provides for two séparate and distinct determinations that may be arrived at after such inspection. In the first division of that paragraph preceding the semicolon there is found a provision for the making of an order, the conditions warranting the same first having been found, which order directs the repairing and improving of existing school buildings. By the last portion of that same subsection following the semicolon there is no provision for the giving of any order, and the power there given goes no further than to provide for the reciting of the fact, when so found, that the building is unfit for school purposes and the reason therefor. Evidently it is the order that is specified in the first portion of sub. 3 that is referred to in the subsequent subsections of sec. 517 providing for its filing and its enforcement, and it is such order, and such order only, that is followed by the penalty of the withholding of the seven-tenths mill tax in eases where compliance with such order is refused by the school board as provided in sub. 6 above. By sec. 430, Stats., the power of building schoolhouses is vested in the inhabitants of the respective school districts. Such inhabitants at their regular meetings have the power to designate a site for a school building and to vote such tax as [109] shall he deemed sufficient to purchase or lease such site and to build, hire, or purchase a schoolhouse and keep it in repair. The original power, therefore, of purchasing and leasing the site and the building, hiring, or purchasing of schoolhouses is thereby vested in such inhabitants, and we must refuse to construe sec. 517 in a manner that would be in derogation of the powers of the inhabitants of the school district unless there be found, in clear terms, the intention of the legislature that what has been given to these inhabitants of the school district by sec. 430 is intended to be in effect taken away from them and vested in the state superintendent. It is further urged on behalf of defendant that although he may not have the power to compel the building of a new schoolhouse, yet that it still may he a proper exercise of the discretion vested in him by sec. 1072Z), Stats., to withhold the seven-tenths mill tax from a school district that will not heed his recommendation that such new building should replace the old, if it should be held that he can only recommend and not order. This, however, would be permitting to he done-by indirection what could not be done directly. The only orders, therefore, noncompliance with which can be visited with the penalty of withholding the seven-tenths mill tax, are such lawful orders as the state superintendent may make under the authority of the statute. If warrant for the making of the order cannot he found in the statute, then he has no discretion or power to punish for any violation of any such attempted proceeding. However much we may be impressed with the argument that the legislature, by the enactments found in sec. 517, must have wanted to clothe the state superintendent not merely with the power to require substantial modifications and changes in existing buildings to meet ever-increasing demands for sanitation and safety, but also with the wider and greater powers of determining the need for, and then ordering, with the same ends in view, the building of a new struc [110] ture to replace the old, yet we cannot expand the language of a statute which clearly gives and grants the lesser into an expression, by judicial construction, of the grant of the greater power. The trial court was therefore right in the construction placed upon this statute. The respondent contends that the order of the state superintendent which denied him an opportunity to present oral testimony and make oral arguments before him upon such an appeal as was taken by the school district in this case was an unwarranted denial of a substantial right; and that it in effect deprives it of property rights without due process of law. Although now not necessary in the determination of the case, yet we are warranted in saying that, the rules here in question are practically the same as those that were before this court and approved of as a legitimate exercise of the power and authority vested in him as an administrative officer in the case of State ex rel. Moreland v. Whitford, 54 Wis. 150, 11 N. W. 424. We think the present situation is within the rule laid down in that case, and that where there was opportunity given to the parties interested in such an appeal as herein to present all the facts and make all the suggestions they deemed necessary by affidavits and in writing, there was no infringement of any property rights. By the Court. — Judgment of the circuit court is affirmed.