Opinion
February 5, 1957 —
March 5, 1957.
APPEAL from a judgment of the circuit court for Milwaukee county: WILLIAM I. O'NEILL, Circuit Judge. Reversed.
For the appellant there were briefs by George A. Schmus, city attorney, and Charles G. Panosian, assistant city attorney, and oral argument by Mr. Schmus.
For the respondents there was a brief by Joseph A. Barly and Charles Thekan, both of Milwaukee, and oral argument by Mr. Barly.
A petition of the plaintiff, city of West Allis, for a writ of mandamus directing the defendants, John J. Zawerschnik, George Sanford, and William Stutzman who are officials of dissolved School District No. 12 of the village of West Milwaukee to deliver possession of the school buildings and records of said school district to the joint City School District No. 1 of the city of West Allis, the village of West Milwaukee, the town of Greenfield, and the town of Wauwatosa in Milwaukee county, and the town of New Berlin in Waukesha county, was filed in the circuit court for Milwaukee county, and an alternative writ of mandamus was issued returnable April 27, 1956. The defendants made timely return to the writ of mandamus. After a hearing, the court on August 6, 1956, entered judgment in favor of the defendants directing that the writ be quashed, and that the proceedings be dismissed.
The facts were stipulated by the parties and are substantially set forth in State ex rel. West Allis v. Dieringer, post, p. 208, 81 N.W.2d 533.
The appeal is from the judgment.
The sole question presented is whether the defendants may be compelled by mandamus to transfer and deliver to the school district to which all of the territory of their school district was validly attached, the buildings and records of the school district which they represent.
The order which created joint City School District No. 1 of the city of West Allis, the village of West Milwaukee, the town of Greenfield, and the town of Wauwatosa in Milwaukee county, and the town of New Berlin in Waukesha county (hereinafter referred to as "Joint City School District No. 1"), became effective January 5, 1956. State ex rel. West Allis v. Dieringer, post, p. 208, 81 N.W.2d 533. By such order, School District No. 12, of the village of West Milwaukee was dissolved, and the territory of said dissolved district was attached to joint City School District No. 1. Zawerschnik v. Joint County School Comm. (1955), 271 Wis. 416, 73 N.W.2d 566. This action was commenced after the order creating joint City School District No. 1 became effective.
Sec. 66.03, Stats., treats with the adjustment of assets and liabilities on division of territory. It reads in part:
"(3) Real estate. (a) The title to real estate shall not be transferred except by agreement, but the value thereof shall be included in determining the assets of the municipality owning the same and in making the adjustment of assets and liabilities.
"(b) The right to possession and control of school buildings and school sites shall pass to the municipality in which the same are situated immediately upon the annexation or detachment of any school district territory to another municipality becoming effective, . . .
"(5) Apportionment board. The boards or councils of the municipalities, or committees, thereof selected for that purpose, acting together, shall constitute an apportionment board. When any municipality is dissolved by reason of all of its territory being so transferred the board or council thereof existing at the time of such dissolution shall for the purpose of this section, continue to exist as the governing body of such municipality until there has been an apportionment of assets by agreement of the interested municipalities or by an order of the circuit court. . . ."
There was clearly a duty upon the defendants to deliver the buildings and the records of School District No. 12 of the village of West Milwaukee to joint City School District No. 1, when said district was dissolved and its territory was ordered attached to the reorganized district. Such duty was ministerial and did not involve the exercise of discretion.
Mandamus is the proper remedy to compel public officers to perform duties arising out of their office and presently due to be performed. State ex rel. Martin v. Zimmerman (1939), 233 Wis. 16, 288 N.W. 454. A writ of mandamus will issue to enforce performance of plain and imperative duties of a ministerial character imposed upon administrative agencies. 34 Am. Jur., Mandamus, p. 907, sec. 126; State ex rel. Krause v. Jones (1928), 196 Wis. 464, 220 N.W. 373.
That mandamus is the proper remedy to compel the officers of a school district to transfer custody and control of items as sought here, is well established. State ex rel. Joint School Dist. No. 2 v. Sweeney (1899), 103 Wis. 404, 79 N.W. 420; State ex rel. Manitowoc v. Green (1907), 131 Wis. 324, 111 N.W. 519. It is not a defense to a mandamus action for the custody and control of school property after annexation that no apportionment has been made. State ex. rel. School Dist. No. 1 v. Schriner (1912), 151 Wis. 162, 138 N.W. 633.
By the Court. — Judgment reversed, with directions to the trial court to issue a peremptory writ of mandamus requiring the defendants to relinquish, surrender, and transmit to joint City School District No. I of the city of West Allis, the village of West Milwaukee, the town of Greenfield, and the town of Wauwatosa in Milwaukee county, and the town of New Berlin in Waukesha county, possession and control of the school buildings and sites, records, files, and proceedings of School District No. 12, village of West Milwaukee.