Opinion
December 4, 1956 —
January 7, 1957.
APPEAL from orders of the circuit court for Marquette county: RUSSELL E. HANSON, Circuit judge. Affirmed as to the order of May 16, 1956; dismissed as to the others.
For the appellants there was a brief by Nikolay, Jensen Scott of Abbotsford, and oral argument by Frank L. Nikolay.
For the respondents Wisconsin Dells Union High School District No. 6 and Adams-Friendship Union Free High School District No. 1 there was a brief by Robert Dougherty of Wisconsin Dells, and for other respondents by Rogers Owens and Phillip Owens, all of Portage, and oral argument by Phillip Owens.
On May 31, 1955, Gordon Gerbitz, George F. Mackenzie, and George Nelson each filed his individual petition with the secretary of the Marquette County School Committee requesting the detachment of certain lands from the Adams-Friendship Union Free High School District, Joint School District No. 1 of the city of Portage, and the Union Free High School District of Wisconsin Dells, and the attachment of the detached territory to the Oxford Union Free High School District and Common School District No. 2, village of Oxford, Marquette county, Wisconsin. The County School Committees of the several counties affected met on June 8, 1955, and formed three Joint County School Committees. The three Joint Committees met and passed a resolution declaring "that a public hearing will not be held by said committee." No further action was taken upon the respective petitions by the committee.
Thereafter the petitioners sought to appeal to the circuit court under the authority of sec. 40.03 (5), Stats., from the decision refusing to grant petitioner's request. An action was also begun by them in the circuit court, and the pleadings were served on the secretary of the Joint Committee. The action so begun named the petitioners and the defendants, who are respondents here, as parties, and prayed for the issuing of an order by the court detaching the land specified in the petition from the school districts of which they are now a part and attaching the same to the districts mentioned in the petition.
The action was thereafter dismissed on stipulation on October 5, 1955, and on October 13th the court ordered that the petition in the appeal be granted, and described the parcels of real estate listed in the petition and transferred them from the respective districts to the reorganized district. Both of the said orders were duly set aside December 5, 1955, by the court. Sec. 269.46 (3), Stats.
There were three separate petitions, one to each of the three separate Joint County School Committees; three separate resolutions, but only one jointly entitled "Notice of appeal to the circuit court." There is no allegation that any of the Joint Committees acted outside the scope of its authority or abused its discretion.
Thereafter the trial court gave the matter further consideration and concluded that the appeal and action were without merit, sustained demurrers, and dismissed the appeal. That order was entered on May 16, 1956.
From the rulings of the trial court sustaining the demurrers and dismissing the appeal, and from the orders of December 5, 1955, vacating the October orders, the plaintiffs appeal.
The proceedings in the circuit court resorted to by the petitioners finally were disposed of properly by the rulings of the circuit court. The statute placing the authority in the school committees, sec. 40.03 (1), Stats., places the petition in such cases, as here under consideration, completely in the control of the body designated to exercise those duties by the legislature and is a matter to be considered by that body, which may, in its discretion and judgment, order the creation, alteration, consolidation, or dissolution of school districts within its jurisdiction; or it may decide to permit a continuation of an existing district.
The petitions of the appellants sought to invoke the exercise of legislative power. Because of the refusal of the School Committee to comply with their petition, the appellants seek to transfer the question from the authorized body to the court. It was within the competence of the County School Committee to act in the matter of changing or reorganizing the district. It was for the committee, in its wisdom, to act for the people whose representatives they are. The separation of powers cannot be overlooked, and so far as the proceedings in this matter are concerned, the learned circuit judge, in his final determination, after having explored every claim presented, reached a result which must be affirmed. The power reposed in the School Committee cannot be delegated. Had the committee decided to allow the change, then and then only, was it required to give notice required by statute, sec. 40.03 (1), which reads:
"Upon the petition of an elector of the county or upon its own motion, the county school committee may order the creation, alteration, consolidation, or dissolution of school districts within the county, . . . Before issuing any such order the committee shall, by resolution, provide for a public hearing on the proposed reorganization. . . ."
While sec. 40.03 (5), Stats., provides that if the county school committee "refuses or neglects to issue and record an order of creation, alteration, dissolution, or consolidation when petitioned to do so, then any person aggrieved may appeal. . . . The court shall not remand the proceeding, but shall issue its own order, . . ." that statute does not authorize a trial de novo, nor empower the court to substitute its judgment on the merits for that of the school committee. Perkins v. Peacock, 263 Wis. 644, 58 N.W.2d 536. If it did so, it would be an unconstitutional delegation of legislative power. School Dist. v. Callahan, 237 Wis. 560, 579-581, 297 N.W. 407. Properly construed, sec. 40.03 (5) intends that the judicial review on appeal cover only questions of jurisdiction and unlawful abuse of power. Perkins v. Peacock, supra; Endeavor-Oxford Union F.H.S. Dist. v. Walters, 270 Wis. 561, 569, 72 N.W.2d 535. The decision in the Endeavor-Oxford Case, in which the court granted relief to the petitioners, was based on the proposition that the joint school committee's order denying the petition for transfer of territory resulted from a mistaken view of law that a majority of all the members of the committee rather than a majority of those present at the meeting was required to grant the petition. The denial of the petition was therefore an abuse of discretion, and subject to review by the court.
In the instant case, no abuse of discretion is alleged, nor does any mistake of law appear on the part of the Joint School Committee. As pointed out above, the refusal of the committee to order a public hearing was in strict conformity with the statutes. The court cannot substitute its judgment for that of the respective School Committees or have a trial de novo. United Shoe Workers, etc., v. Wisconsin L.R. Board, 227 Wis. 569, 279 N.W. 37; Wagner v. Milwaukee, 180 Wis. 640, 192 N.W. 994.
The legislative power reposed in administrative bodies and committees is of the nature and provides for acts which are legislative in character. The call for judicial action in this instance did not occur. The order of May 16, 1956, sustaining the demurrer and dismissing the appeal is approved, and must be affirmed. The orders of December 5, 1955, vacating the orders of October 5th and October 13th are not appealable. Kearney v. Morse, 199 Wis. 150, 152, 225 N.W. 729; Cross v. Leuenberger, ante, p. 393, 80 N.W.2d 468.
By the Court. — Order of May 16, 1956, sustaining demurrers and dismissing appeals is affirmed. Appeals from nonappealable orders of December 5, 1955, are dismissed.
CURRIE, J., took no part.