State ex rel. Bement v. Rice , 35 Wis. 178 ( 1874 )

Lyoít, J.

I. We are of the opinion that the circuit judge had power to allow the mandamus at chambers. It is not believed that an extended discussion of such power would be profitable, it only being material that the question of its existence should be determined. We will only refer to the statutes which seem to uphold the power. R. S., ch. 116, secs. 4 and 5 (Tay. Stats., 1306-7, §§ 22 and 23); R. S., ch. 140, sec. 29 (Tay. Stats., 1655, § 30). We think, further, that by virtue of other statutes the writ may be allowed by any officer having the powers of a circuit judge at chambers. See In re Gill, 20 Wis., 686. An alternative mandamus is little more than an ordinary order to show cause, and there seems to be no good reason why the facilities for obtaining it should not be as ex tensive as those which the law furnishes for obtaining the much more summary and severe writs and processes of habeas corpus, ne exeat and injunction. Yet these, as well as writs of certiorari, may be allowed or granted by a judge or court commissioner at any time. It must be held that the motion to quash the writ was properly denied.

II. When the town of Black Creek was divided, and the town of Cicero created and organized, school district No. 1 of Black Creek became thereby a joint school district of the two towns (State ex rel. School District etc. v. Wolfram, 25 Wis., 468); and the joint action of the supervisors of both towns was re-, quired to alter or regulate it. Laws of 1863, ch. 155, sec. 15 (Tay. Stats., 544, § 15). It is very doubtful whether the supervisors had, or have, the power to dissolve a school district, unless they attach the territory which constituted the same to some other district. The statute (Tay. Stats., 544, § 16) does not seem to contemplate that there can be a dissolution or disorganization of a school district unless it results from the alteration of districts. It seems quite clear that the policy of the law is, that the territory onceincluded in a district shall remain thereafter in that or some other district. This view of the law is confirmed by the provisions of ch. 56, Laws of 1873, which make it the duty of the supervisors to attach to adjoining districts any school district which neglects for two consecutive years to maintain a public school therein as required by law. Hence it is very probable that the joint order of dissolution in this case, standing alone and unexplained, would be a nullity. It seems to us, however, that such order must be considered and interpreted in connection with the accompanying facts and circumstances. In the light of these we have no difficulty in holding that the joint order, wbicb purports to dissolve tbe joint district, and the order of the supervisors of Cicero made at the same time, creating district No. 1 of that town, taken together, are equivalent to a joint order creating a new district out of that portion of the joint district lying and being in the town of Cicero. Instead of adopting the latter method, the supervisors accomplished precisely the same result by other means equally as effectual. The result attained, rather than the means employed to attain it, would seem to be the proper test by which to determine the rights and liabilities of the districts affected by this litigation.

Our conclusion is, that district No. 1 in Black Creek is legally liable to pay district No. 1 in Cicero the proportion of the value of the school house, and other property (if there was any) of the joint district, justly due to such new district. Tay. Stats., 543, § 12.

III. But we are of the opinion that it appears on the face of the relation that the relator has mistaken his remedy. We think the statutes above cited, properly construed, require the joint action of the supervisors of the two towns to ascertain and determine the sum which the Black Creek district ought to pay to the new district in Cicero. When the sum is determined in that manner, it will be the duty of the proper district and town officers of Black Creek to take the steps prescribed by law to raise the same.

The provision of § 12 above cited, that the proportionate sum to be paid to the new district shall be ascertained and determined “at the time of forming such new district,” is directory merely; and, if not complied with at the time specified, it may be complied with afterwards. The supervisors of the.two towns should meet at some reasonable time and place and perform the duty in that behalf which the law imposes upon them.

It follows from the foregoing views, that the judgment of the circuit court must be reversed.

By the Court. ■ — • It is so ordered, and the cause is remanded with directions to quash the alternative writ of mandamus and dismiss the proceedings.