Opinion
April 2, 1962 —
May 1, 1962.
ORIGINAL ACTION, upon leave granted, for a declaratory judgment asserting the validity of the proceedings creating, and the existence of, the said Unified School District No. 1. Declaratory judgment granted.
For the petitioners there was a brief by La France, Thompson, Greenquist, Evans Dye of Racine, for Unified School District, town of Caledonia, town of Raymond, village of North Bay; Jack Harvey of Racine, for city of Racine and Racine city school board; Louis F. Gerard of Sturtevant, for village of Sturtevant, Racine county school committee, and George Hnilicka; Whaley Whaley of Racine, for village of Wind Point; Benson, Butchart Haley of Racine, for town of Mt. Pleasant; Robert C. Albert of Racine, for village of Elmwood Park; and oral argument by Kenneth L. Greenquist.
No appearance or brief for the respondent.
On January 20, 1961, the city of Racine and the several villages and towns, all in Racine county, which are the petitioners herein, issued a joint order providing for the reorganization of several school districts. This included 10 districts of the town of Caledonia, seven districts of the town of Mt. Pleasant, three joint districts of the towns of Caledonia and Mt. Pleasant, one joint district of the town of Mt. Pleasant and the village of Elmwood Park, one joint district of North Bay village, Wind Point village, and town of Caledonia, one joint district of Sturtevant village and town of Mt. Pleasant, one joint district of the towns of Caledonia and Raymond, and the city of Racine school district. The intention was to create a unified school district as provided for in sec. 40.095, Stats. 1959.
A referendum was then held in the affected areas. The result favored the formation of the unified school district. By virtue of the joint order Unified School District No. 1 assumed legal existence as of June 26, 1961. A school-district beard of nine members was duly elected and has been functioning since June 26, 1961.
Subsequently the respondent herein, Edmund Janowski, resident and taxpayer of the town of Caledonia, sought to have the proceeding reviewed by writ of certiorari in the circuit court for Racine county. The court issued a writ on June 26, 1961, and an amended writ on July 14, 1961, directed to the petitioners herein, who moved that the amended writ be quashed. The parties stipulated as to the facts and the matter was submitted on briefs to the circuit court.
Respondent herein contended that the reorganization was contrary to the provisions of sec. 40.095, Stats. 1959. In said statute the word "village" is in the singular; four villages are contained in the unified district.
Petitioners herein argued that the circuit court lacked jurisdiction because Janowski had failed to comply with the appeal procedures in sec. 40.06(3), Stats. That statute requires appeal first to the state superintendent of public instruction. They also contended that the reorganization was valid under sec. 40.095, Stats. 1959.
Judgment was entered quashing the amended writ of certiorari. Though Janowski's time for appeal to this court had not run, petitioners commenced this original action. They alleged that the need for final determination of the dispute without delay was imperative and urged the matter was publici juris. Leave to commence an original action for declaratory judgment under sec. 269.56, Stats., was granted. Part of petitioners' petition was deemed to constitute the complaint. Respondent was allowed time to file a responsive pleading and brief, but has not done so. In order to have the record before us we issued a writ of certiorari directed to the circuit court for Racine county.
The circuit court held that the exclusive remedy for attacking the legality of the order of January 20, 1961, establishing the unified school district was by appeal under sec. 40.06(3), Stats., and not by certiorari. Respondent herein, having failed to avail himself of his legal remedies, was held not to be entitled to review by certiorari. The circuit court further held that the creation of the unified school district was valid under sec. 40.095, Stats. 1959. The 1961 amendment to said section inserting the words "or villages" wherever the word "village" appeared was determined merely to have clarified the law and not to have changed the existing law. We agree with the conclusion reached by the circuit court.
Because of the statute, the proper remedy for reviewing questions of jurisdiction and abuse of statutory power is by appeal, not certiorari. Except for cases where such right of appeal would be inadequate, a party who fails to avail himself of his legal remedies cannot by certiorari circumvent the procedures that were available to him. Langland v. Joint County School Comm. (1961), 12 Wis.2d 557, 107 N.W.2d 503; State ex rel. Damerow v. Behrens (1960), 11 Wis.2d 426, 105 N.W.2d 866; Perkins v. Peacock (1953), 263 Wis. 644, 58 N.W.2d 536.
On appeal the state superintendent passes de novo upon the wisdom or advisability of the order, not on jurisdictional matters. Perkins v. Peacock, supra, page 657; State ex rel. Damerow v. Behrens, supra, page 433. Appeal then lies to the circuit court to review questions respondent sought to raise by certiorari. No exceptional circumstances exist here wherein the statutory right of appeal was inadequate, for which certiorari might lie.
In accordance with sec. 990.001(1), Stats., the word "village" contained in sec. 40.095, Stats. 1959, must be construed in the plural. This results in an interpretation which is consistent with the manifest intent of the legislature. It is clear that ch. 38, Laws of 1961, merely clarified sec. 40.095, Stats. 1959, and was not a change of substantive law.
By the Court. — Judgment granted declaring valid the proceedings creating Unified School District No. 1. All further proceedings in the circuit court action are permanently stayed. No costs to be taxed to respondent.