State ex rel. McKenzie v. Brown

The following opinion was filed April 20, 1921: Rosen berry, J. The provisions of the law relating to the establishment of union free high schools (sec. 40.47, Stats.) leave much to be desired in the way of definiteness, completeness, and unity. In the view which we take of this matter it is not necessary to set out the entire statute nor to refer to the many inconsistencies therein which were urged upon us on the oral argument as well as in the briefs. It is the contention, of the defendants that the writ should be quashed for the reason that it is misdirected, in that the [501] state superintendent of public instruction is not made a party to the proceeding. This leads to a consideration of the statute, sec. 40.47: “(1) With the advice and consent of the state superintendent a free high school, to be known as a 'union free high school,’ may be established and maintained in any town, or in any tract of contiguous territory having an area of not less than thirty-six nor more than seventy-two square miles and bounded by town, school district, section or half-section lines or by lines bounding in part an existing free high school district, or in cases where impassable streams, lakes or swamps render it impracticable to follow such boundary lines, such natural boundaries may be substituted. . . . “(6) The result of the election shall be certified at once by the election officers to the clerk of each town and village concerned ; and if the proposal be adopted the result shall also be certified to the state superintendent by the respective clerks within six days after the election. If such action meets the approval of the state superintendent he shall issue a certificate of establishment of a union 'free high school in said tract of territory.” Under the provisions of this statute it is argued that there is vested in the state superintendent the power to exercise a discretion as to whether or not the proposed union free high school shall be established; that the petition does not show that the result was certified to the state superintendent or that he issued the certificate of establishment; and that the matter had not proceeded to a final determination and hence the writ should not have been issued. If the law vests in the state superintendent no discretion, it is difficult to discover the legislative intent in requiring the organization to be with the advice and consent of the state superintendent and his approval to be evidenced by the issuing of a certificate of establishment. The provisions of sec. 40.47 confer no power, nor do they attempt to confer power, upon the state superintendent to review the regularity [502] of the proceedings had pursuant to its provisions. Assuming that such authority might constitutionally be conferred upon the state superintendent, no such power is conferred by sec. 40.47, and in that respect it is the same as sec. 497, now a, part of sec. 39.01. State ex rel. Schuette v. Cary, 143 Wis. 83, 126 N. W. 562; State ex rel. Moreland v. Whitford, 54 Wis. 150, 11 N. W. 424; State ex rel. Bidgood v. Clifton, 113 Wis. 107, 88 N. W. 1019. It is the intent and purpose of the statute to confer upon the state superintendent, in the exercise of the supervisory control vested in him by sec. 1, art. X, of the constitution, the power to determine whether or not the educational interests of the community involved will be best served by the incorporation of the proposed union free high school. Manifestly the corporation cannot come into existence unless and until the state superintendent shall evidence his approval in the manner prescribed by statute, otherwise his advice and consent might be rendered nugatory; for, the corporation once being in existence, the state superintendent could not revoke its powers or suspend its charter. The act, then, by means of which the corporation comes into existence is the decision or determination of the state superintendent. While his decision does not, strictly speaking, create the corporation, the legislature has conferred upon him the power to determine whether or not the proceedings taken under the statute shall operate to create a corporation. The petition does not allege that the proceedings were certified to or approved by the state superintendent. The proceeding attempted to be reviewed by the writ is therefore one which has resulted in no determination and hence it is not reviewable under a writ of certiorari, which lies to review a final determination only. 11 Corp. Jur. p. 126, § 75, and cases cited. As was said in Mayor, etc. v. Fordyce, 88 N. J. Law, 440, 97 Atl. 67, certiorari cannot be used to draw judicial opinions in advance. The matter under re [503] view must have terminated in a final order. Gauld v. Board of Supervisors, 122 Cal. 18, 54 Pac. 272. It appears from the return that the proceedings were certified to the state superintendent and that he did issue the certificate of establishment as provided in sub. (6), sec. 40.47. If we consider the petition amended so as to show this undisputed fact, the matter may not then, be reviewed by certiorari because of the limitation provided in sub. (2), sec. 39.01: “No review of the decisions of the state superintendent on matters decided by him shall be had unless proceedings by certiorari or other appropriate action be brought within thirty days after such determination by him,” etc. This provision was first enacted as ch. 184, Laws 1901. As now arranged, it might well be construed as applying to decisions on matters brought to the state superintendent pursuant to the provisions of sub. (1), sec. 39.01. The use in the original statute of the word “matters” is significant, and by that we think it was intended to cover all decisions made by the state superintendent, whether the controversies in which the decisions were made reached him by way of appeal or were instituted before him in the first instance. A review of the statutory provisions relating to the creation of municipal and quasi-municipal corporations shows that the legislature has endeavored to set matters relating to the validity of the organization of such corporations at rest at as early a period as possible, and in consequence has provided by statutes of limitation a brief period in which such matters may be reviewed. The construction which we place upon the statute is in accord with the general legislative, purpose. By the Court. — Judgment of the circuit court reversed, and cause remanded with directions to quash the writ. A motion for a rehearing was denied, with $25 costs, on July 13, 1921.