Opinion
January 12, 1961 —
February 7, 1961.
APPEAL from a judgment of the circuit court for Washburn county: CARL H. DALEY, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Robert Zum Brunnen of Spooner.
For the respondent there was a brief by Warren Winton, district attorney of Washburn county, and Ward Winton, assistant district attorney, and oral argument by Ward Winton.
On June 21, 1960, Lorraine Langland petitioned for a writ of certiorari to review an order of the Joint County School Committee of Burnett and Washburn counties. The writ was issued. On motion of the committee, judgment was entered August 18, 1960, dismissing the writ. Mrs. Langland appealed.
It appears from the petition that the order in question was issued March 15, 1960, attaching School District No. 1, town of Madge, Washburn county, to Joint School District No. 1 of the city of Spooner and other municipalities. Evidently some portion of the latter district is within Burnett county. A hearing and a conference preceded the issuance of the order. All members of the board of the Madge district, including petitioner, Mrs. Langland, were present, and three of the seven members of the board of the Spooner district. It was alleged that the order was invalid because less than a majority of the members of the Spooner board were present, and because the committee did not reach its decision at the conference, but afterward.
The motion to dismiss was based on the proposition that petitioner's exclusive remedy was the appeal provided by sec. 40.03 (5), Stats., which must be taken within thirty days after mailing of certified copies of the order as required by sec. 40.025 (5). The committee asserted that the required mailing occurred March 16, 1960, and no claim is made to the contrary.
Mrs. Langland, plaintiff and appellant, argues that the purpose of the statutory appeal is to review valid orders, and that jurisdictional defects may be reviewed by certiorari.
We have held that an order of attachment made by a county school committee is invalid if, as alleged here, it represents a decision reached after and not at the conference with the boards. Joint School Dist. v. Walworth County School Comm. (1959), 6 Wis.2d 366, 94 N.W.2d 695.
Sec. 40.303, Stats. 1949, authorized the county school committee to consolidate school districts, and provided an appeal to the circuit court from an order of the committee. In a case arising under that section, this court decided that review could not be had by certiorari because the statutory appeal was the exclusive remedy for reviewing questions of jurisdiction and possible abuse of statutory power by the committee. The reasoning was that the legislature did not intend the appeal to permit review of the wisdom or advisability of the order, but intended a review only of the questions of jurisdiction and abuse of statutory power, precisely the scope of certiorari. Therefore, in all but "exceptional" cases, the appeal was to be the exclusive remedy.
Perkins v. Peacock (1953), 263 Wis. 644, 58 N.W.2d 536. See State ex rel. Damerow v. Behrens (1960), 11 Wis.2d 426, 433, 105 N.W.2d 866.
With respect to exceptions, it was said ( Perkins v. Peacock, 263 Wis. 644), at page 658:
". . . there may be exceptional cases where such right OF appeal would be inadequate for such purpose and certiorari might lie — for example, where statutory notice was not given and the aggrieved party did not receive actual notice until the time for appeal had expired."
There is no allegation in Mrs. Langland's petition of any fact suggesting that the present case would be one of the exceptions. On the contrary, the statutory notice was given. Mrs. Langland was present at the hearing and conference, and a certified copy of the order was sent by registered mail to the clerk of the district of which she was director.
While the action of the county school committee is now authorized by sec. 40.03, Stats. 1959, and the appeal by sub. (5) thereof, we can find no difference material to the question before us between the present statute and the 1949 statute previously considered.
The circuit court properly concluded that review could not be had by certiorari, and that the writ must be dismissed.
By the Court. — Judgment affirmed.