Summary
In Balson v. Joint County School Comm. (1963), 19 Wis.2d 96, 119 N.W.2d 438, two petitions were pending involving the town of Calumet. The order issued in the second proceeding omitted Calumet, leaving its status the same, even though the petition and proceedings thereon had requested a change in its status.
Summary of this case from Joint School Dist. No. 2 v. StateOpinion
January 10, 1963 —
February 5, 1963.
APPEAL from a judgment of the circuit court for Fond du Lac county: RUSSELL E. HANSON, Circuit Judge. Affirmed.
For the appellants there was a brief and oral argument by Eugene A. Bitters of Ripon.
For the respondents Charles Balson and others there was a brief and oral argument by John William Calhoun of Fond du Lac.
For the respondent Joint County School Committee of Fond du Lac county and Sheboygan county there was a brief and oral argument by Frederick K. Foster, corporation counsel of Fond du Lac county.
This appeal concerns the validity of an order of the Joint County School Committee of Fond du Lac and Sheboygan counties (hereinafter called the joint committee). The order, dated November 20, 1961, which created a new common school district for the purpose of operating grades one through 12, was declared null and void by virtue of the fact that the joint committee did not have jurisdiction to act. Judgment was entered May 2, 1962, and certain intervenors appealed.
The petition on which the joint committee acted was filed October 21, 1961, with the joint committee pursuant to the provisions of sec. 40.03, Stats. It proposed that a new common school district be created out of all or any portion of the territory included in 11 existing school districts, including School District No. 11, town of Calumet, Fond du Lac county.
On October 13, 1961, eight days prior to the filing of the petition with the joint committee, a petition had been filed with the clerk of the city of New Holstein, pursuant to the provisions of sec. 40.06, Stats., proposing that School District No. 11, town of Calumet be dissolved and attached to the Joint School District No. 5, city of New Holstein, and other municipalities. A hearing thereon was held November 10, 1961, but the proposal failed to be concurred in by a majority of the board of each municipality in which the districts affected lay, as required for a valid order.
On November 20th, the joint committee issued the order involved on this appeal, dissolving 10 school districts and creating a new district out of their territory, but not affecting School District No. 11, town of Calumet.
Appellants contend that the order of the joint committee is valid because it did not affect School District No. 11, town of Calumet. They recognize that, "Competition between statutory proceedings which cannot both succeed has been resolved by a rule that `the movement first started has the right of way.'" They argue, however, in effect, that by omitting School District No. 11 from the order of November 20th, the joint committee has yielded the right-of-way to the proceeding before the municipal boards.
Lundt v. School Board (1957), 2 Wis.2d 263, 266, 86 N.W.2d 452; In re Incorporation of Village of St. Francis (1932), 208 Wis. 431, 434, 243 N.W. 315.
In our view, however, the matter is controlled by the provisions of sec. 40.025 (1), Stats., created by ch. 536, Laws of 1957, dealing with competition between school-district-reorganization proceedings pertaining to the same territory.
This statute has been applied in Palmer v. Sawyer County School Comm. (1959), 7 Wis.2d 437, 96 N.W.2d 810, and School Dist. v. Harding (1960), 10 Wis.2d 122, 102 N.W.2d 97.
Sec. 40.025 (1) (c), Stats., provides:
"Jurisdiction, when acquired as prescribed in pars. (a) and (b), continues until the reorganization authority disposes of the matter before it, unless lost as provided in par. (d). When the making of a reorganization order is pending before a reorganization authority or such order has been made, any other reorganization proceeding or order made by that or any other reorganization authority, after jurisdiction has been acquired as provided in par. (a) or (b) and prior to the going into effect of an order made and filed pursuant thereto, pertaining to all or any part of the territory included in the order, is void."
The quoted paragraph makes it clear that the proceeding commenced on October 21st by petition filed with the joint committee was void because it pertained to School District No. 11, as to which jurisdiction had already been acquired by the council of the city of New Holstein and the boards of other municipalities involved in that proceeding. The statute declares the second proceeding void if it pertains to territory involved in the first proceeding, whether or not the order issued in the second proceeding affects the territory involved in the first proceeding.
Municipal boards, acting under sec. 40.06, Stats., are reorganization authorities under sec. 40.01 (12).
Further portions of sec. 40.025 (1), Stats., deal with the specific situations where the first proceeding results in an order of denial (par. (d) 2), in a decision to deny, but failure to file an order (par. (d) 3), or failure to make an order of reorganization within sixty days (par. (d) 6a). These portions also support the view that when a proceeding pertains to certain territory a second proceeding commenced within specified time limits and pertaining to the same territory is void.
By the Court. — Judgment affirmed.