State ex rel. Knapp v. Pohle

The following decision was announced January 26, 1925: By the Court. — Peremptory writ of mandamus denied, and temporary injunction vacated.. An opinion will be filed later. The following opinion was filed February 10, 1925: Owen, J. The decision of this court denying the peremptory writ of mandamus and vacating the temporary injunction was filed on the 26th day of January, 1925. It will be the function of this opinion to state the grounds upon which that decision was based. These actions are very similar to those of State ex rel. Horton v. Brechler and State ex rel. Horton v. Ketterer, decided herewith (ante, p. 599, 202 N. W. 144), and the original jurisdiction of this court was exerted for the reasons stated in the opinion in those actions. We are confronted, at the ■ outset, with the question of whether the territory annexed to the Joint District by the order of the county committee on common schools is now a part of the Joint District. Conceding that the order was in all respects regular and valid, we are met with the fact that it was never [613] recognized as such by any of the districts affected. The Joint District never assumed to exercise any jurisdiction over the territory annexed by said order, nor did the school districts dissolved thereby discontinue to function'. They continued to operate for a period of two years after the order was made, just as though said order had never been made. The Joint District not only failed to exercise, or attempt to exercise, jurisdiction over the annexed territory, but it most solemnly and deliberately disavowed any such jurisdiction in the proceedings taken by it leading up to a loan from the trust funds of the state as late as December, 1923. Likewise the outlying school districts affected by the order not only failed to recognize the validity of the order, but they affirmatively disavowed its validity by actively participating in the formation of a consolidated joint school district which included all or a great portion of the territory thus annexed. Here we have affirmative action on the part of both parties (construing the Joint District as one party and the outlying territory as another) disavowing the legality or effect of said order, the action of each being taken without protest from the other. Under such circumstances, should either party now be permitted to assert any rights under and by virtue of the order? It is true that the statute does not make any affirmative action on the part of consolidated districts necessary to complete the consolidation. The statute (sec. 40.03) does, however, provide that a “district shall be deemed organized when any two of the officers elected at its first legal meeting file with the clerk and cause to be recorded in the minutes, of such meeting their written acceptance of the offices to which they have been respectively elected or when said officers shall have failed for a period of ten days or more to state their refusal in writing. A district shall also be deemed legally formed when it has been duly organized and has exercised the rights and privileges of a district for a period of four or more months.” [614] Of course where territory is attached to a district already in existence such school district already has its officers and, presumably, does exercise the rights and privileges of a district; so that a provision such as that embodied in sec. 40.03 is not essential where territory is annexed to an already existing district. But the query arises, How long may districts thus consolidated continue to ignore an order of consolidation such as this without being estopped from asserting any rights thereunder? It is quite apparent that there should be some limit to the time when the districts affected by such an order may continue to function in disregard of the order without being estopped to assert any rights thereunder. ' It is now settled that municipal corporations may be estopped upon the same principles and under the same circumstances as individual persons as to matters within the scope of their powers. Eau Claire Dells Imp. Co. v. Eau Claire, 172 Wis. 240, 179 N. W. 2, and cases there cited. This applies to their governmental as well as their proprietary functions, though perhaps .clearer proof is required in the former case. Ibid. By sec. 40.06, Stats., it is provided that “If a district for two or more successive years neglect to- maintain school as required by law, the town board of the town embracing the .district shall upon the recommendation of the county superintendent attach the same to such other adjoining district or districts in the town as they shall judge proper.” This provision has no application to the present situation except in so far as it may have a bearing upon the time within which a consolidated district may affirmatively ignore an order such as this without incurring a forfeiture of its rights thereunder. The statute quoted does declare a certain public policy which has a bearing upon this question. That such a disregard continued for two years may not be controlling under all circumstances, may be conceded. But where, as here, third parties have been affected, different relations have been assumed, and confusion will result from enforcing [615] the order, we think it should be held that the Joint District is estopped from asserting any rights under the order. This is especially true where, as in this case, it is apparent that the order is distasteful to, and is resented by, a large proportion of those affected by the order. The proposed consolidation was denied by the local town and village boards. This no doubt represented the public sentiment of the community affected by the proposed consolidation. The order has not met with cheerful or any other acquiescence on the part of those living within the territory attached to the original district. Neither has the Joint District attempted to assert its authority in such outlying district, but by its acts it has rather disavowed any such authority. This action even is not brought by the Joint District. It is brought by a mere taxpayer residing in the village of Bloomington. Whatever his rights, they certainly do not rise above those of the Joint District. It may well be that the course followed by the Joint District reflects the majority sentiment therein. But whether it does or not, it seems quite plain that the peace and contentment of that community will be better promoted by now holding that the conduct on the part of all the school districts affected has been such as to estop each and all of them from asserting any rights or privileges under the order of annexation. For these reasons the relief prayed for was denied by the judgment of this court filed on the 26th day of January, 1925.