Oak Park School District No. 2 v. Callahan

I find myself unable to concur in the opinion in this case for the following reasons:

Sec. 1, art. X, of the constitution provides: "The supervision of public instruction shall be vested in a state superintendent and such other officers as the legislature shall direct; and their qualifications, powers, duties and compensation shall be prescribed by law. . . ."

Sec. 3, art. X, "The legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable. . . ."

The formation of school districts is not a direct legislative function and authority to form such districts may be vested in the town board. State ex rel. Horton v. Brechler (1925),185 Wis. 599, 202 N.W. 144.

By sec. 40.30, Stats., the town and village boards, councils of cities of the second, third, and fourth classes are authorized to create, alter, consolidate, or dissolve school districts.

Sec. 40.30 (2) provides: "Whenever such alteration, creation, consolidation or dissolution shall be contemplated, the municipal board shall give at least five days' notice, in writing, to the clerk of each district to be in any way affected thereby of the day, hour and place it will be to decide upon the proposed changes. . . ."

While notice must be given, the statute makes no provision for a hearing. Appeals may be taken from the determination of the municipal board to the state superintendent. By a subsequent amendment the statute provides, sub. (1):

"The state superintendent is authorized, on his own motion, by order to attach districts with valuations of less than one hundred thousand dollars to contiguous districts."

On review of the state superintendent's order, the only questions before the court are whether the superintendent acted within his jurisdiction and whether he acted in good faith.School Dist. v. Callahan (1941), 237 Wis. 560,297 N.W. 407.

As I understand the decision, it is now held that when a town board serves the notice provided for in sec. 40.30 (1), Stats., the power of the state superintendent to act upon his own motion is suspended although the statute does not so provide. By so holding the court creates a limitation upon the power of the state superintendent which the legislature might have created but did not. This it seems to me is pure legislation by court decision. While it is true as held in Stateex rel. Hebert v. Carlson (1912), 150 Wis. 584,137 N.W. 746, that a town board may not proceed without giving the required notice, that in no way affects the power conferred upon the state superintendent.

In the opinion in this case it is said:

"It can properly be said that concurrent authority was granted to the municipal board and the state superintendent with reference to the dissolution of this particular school district, but the legislature did not say that the state superintendent could act after the municipal board had elected to do so."

The legislature placed no limitation whatever upon the power of the state superintendent to act at any time he saw fit. Having conferred upon him this broad power it did not need to say that the superintendent could act after the municipal board had given notice of its intention to act and before it had entered an order. The giving of the notice by the town does not constitute action on its part, — that is an exercise of its statutory power. It is merely a condition precedent to the exercise of its powers at that time and place when and where it acts. If the town board had acted, that is, had entered an order attaching territory to contiguous school districts in such a way that the school districts would each have a valuation of more than $100,000, the state superintendent then would have had no power to act. The only limitation upon his power is that he must deal with a district having a valuation of less than $100,000.

That it is within the competence of the legislature to confer such broad discretionary power as is conferred upon the state superintendent by sec. 40.30, Stats., has been distinctly held by this court. State ex rel. McKenzie v. Brown (1921),174 Wis. 498, 182 N.W. 602.

The statute under consideration in that case conferred upon the state superintendent power in the exercise of his discretion to determine whether a union free high school district should come into existence, a power much more important so far as the educational interests of the state are concerned, than is the power conferred upon him by sec. 40.30 (1), Stats.

I am of the opinion that the judgment should be affirmed. The idea that a municipal board by giving a notice that it proposes to act in a certain matter, thereby deprives a constitutional state officer of a power to act, conferred upon him by the legislature, the statute containing no such provision, is to my mind a novel proposition. If the power conferred upon the state superintendent is too broad, it should be limited by the legislature, not by the court.

I am authorized to say that Mr. Justice FRITZ and Mr. Justice WICKHEM join in this dissent.