Opinion
April 7, 1958 —
May 6, 1958.
APPEAL from a judgment of the circuit court for Milwaukee county: MICHAEL T. SULLIVAN, Circuit judge. Reversed.
For the appellants there were briefs by Erwin V. Novotny, attorney, and Richard L. Novotny of counsel, both of Milwaukee, and oral argument by Richard L. Novotny.
For the respondents there was a brief by Walter J. Mattison, city attorney, and Richard F. Maruszewski and Harvey G. Odenbrett, assistant city attorneys, and oral argument by Mr. Odenbrett and Mr. Maruszewski.
Action by common school district No. 15 and a taxpayer of the district for a declaratory judgment that consolidation of the city of Milwaukee and the town of Granville did not affect the boundaries of the district nor destroy the district's existence. The appeal is taken from a judgment which dismissed plaintiffs' complaint.
District No. 15 lies entirely within the town of Granville. Before the town and the city consolidated, the village of Brown Deer had begun proceedings to annex a part of the district. The annexation is still in litigation.
The trial court determined that the consolidation brought the entire district into the city of Milwaukee and therefore made it subject to ch. 38, Stats. Sec. 38.015(1), Stats., places the public schools in Milwaukee under the management of its board of school directors. The court held that if the annexation turns out to be valid, then the part of the district so annexed will lie in the village of Brown Deer and the remainder in the city of Milwaukee, whereupon there will have to be an adjustment of assets, as directed by sec. 66.03. It held, further, that the consolidation was immediately effective to bring the whole district into the city and if subsequently part of it should be annexed to Brown Deer that would not have any effect upon a joint school district which by virtue of the consolidation had been entirely incorporated into the city of Milwaukee. Therefore, upon the proceedings and affidavits the court granted the city's motion for summary judgment dismissing plaintiffs' complaint.
We consider the learned trial court erred.
Brown Deer v. Milwaukee (1956), 274 Wis. 50, 79 N.W.2d 340, determined that the proceeding for consolidation or annexation first instituted has priority, regardless of which is first completed or effective. In that case, as in the present one, the annexation was first commenced and the consolidation first completed. In Brown Deer, supra, we held that the consolidation took territory into the city until the annexations became effective, whereupon the territory subject to the annexations transfers to Brown Deer. Also, that case held that a consolidation does not operate to detach territory from a joint high-school district, and notwithstanding sec. 38.015 (1), Stats., and notwithstanding the consolidation of the town and the city, territory in the former town of Granville remained in the joint high-school district. The Brown Deer decision was so interpreted in Foscato v. Byrne (1958), 2 Wis.2d 520, 87 N.W.2d 512.
The Foscato Case, supra, like the instant one, concerned a common school district lying partly in territory consolidated with the city and partly in territory where annexation proceedings were pending having priority. We recognized that if the annexation is valid the district will be a joint district and in that event the reasoning of Brown Deer v. Milwaukee, supra, squarely applies. That reasoning brought the conclusion that the prospective joint district is not destroyed by the consolidation but continues without change and its boundaries are unaffected by the consolidation.
In our opinion, the Brown Deer and the Foscato Cases, supra, control the instant one.
We conclude that the pending annexation proceedings have priority over the consolidation. If the annexation is sustained in the litigation concerning it the present School District No. 15 will lie partly in the village of Brown Deer and partly in the city of Milwaukee. It will be a joint district. While the validity of the annexation remains undetermined, — sec. 38.015(1), Stats., notwithstanding, — the existence and boundaries of the school district are unaffected by the consolidation.
Judgment should have been granted giving appellants the relief they demanded.
By the Court. — Judgment reversed. Cause remanded, with directions to enter judgment declaring that the consolidation of the town and city do not change the boundaries of appellant school district.
HALLOWS, J., took no part.