Joint School District No. 7 v. Wolfe , 12 Wis. 685 ( 1860 )

By the Court,

COLE, J.

We have very great doubt about the right of the assistant state superintendent of public instruction to examine and determine appeals from the decisions of the town superintendents in forming or altering, or in refusing to form or alter, school districts. The statute authorizes the state superintendent to appoint an assistant superintendent of public instruction, and declares that such assistant shall perform such duties as his principal shall prescribe, not inconsistent with law. Sec. 72, chap. 10, R. S., 1858. It also makes it the duty of the state superintendent, to examine and determine all appeals duly made to him from the decision of any school district meeting, or from v the decision of any town superintendent, in forming or altering, or in refusing to form or alter, any school district, or concerning any other matter under the common school law of the state; and his decision thereon is final (sec. 65). Controversies growing out of the formation of school districts, frequently give rise to questions of considerable difficulty and importance, and we have but little doubt that the legislature, in conferring upon the state superintendent the power to review and revise the action of the local authorities upon these matters, intended to make this a personal duty, to be discharged by the state superintendent. We can conceive of nothing belonging to his office, which evinces greater personal confidence and trust, than this power to hear and determine these appeals. There are many things connected with the office of state superintendent of public instruction, which can as well be performed by an assistant as by the superintendent himself; but this power to hear and determine these appeals, is a quasi judicial function, and ought to be exercised by the state superintendent in person. We therefore think that the order of the assistant state superintendent, bearing date November 30th, 1859, exhibited among the papers in this case, and made in the matter of the appeal of Abram Wo^and others, of joint district No. 7, &e., was unauthorized and void.

But, moreover, if we are wrong in supposing that the assistant state superintendent had no right to act upon and determine this appeal, still it is very clear that according to the order made by him, the school house could not be removed until payment of a certain sum had been made to the other parts of the old district. Eor the order says: “This decision shall be null and void, except upon the performance of the acts herein required; that the said Joint District No. 7, of Burke and Blooming Grove, shall pay or cause to be paid to the district composed of the north half of sec. six, in the town of Cottage Grove, and section thirty-one, in the town of Sun Prairie, or the districts to which these several tracts of land may be severally attached, such sums of money,” &c., thus making the validity of the order depend upon the performance of certain things. Now it is not pretended that the conditions have been performed, upon which the validity and operation of the order depended.' The most that was done to comply with it, was, to rule to raise, by taxation, a certain sum of money, to be paid over to the other parts of the old district. But this was not what the order required. The money was to be paid before the order should take effect. As this was not done, the plaintiffs in error had no right whatever to interfere with the school house, and their attempting to do so when the school was in session, presented a very proper case for an injunction.

Several questions of practice were raised and discussed upon the briefs of counsel, but it appears to us unnecessary to notice them, after expressing ourselves upon the merits as distinctly as we have. We certainly think the order upon which the plaintiffs in error relied to justify them in removing the school house, was of no validity in the first instance; and even if it were a valid order, the parties acting under it, did not perform the conditions precedent, upon the perform-anee of wbicb tbe same was to take effect, and go into operation.

Tbe judgment of tbe circuit court is affirmed.