#### State ex rel. McDiarmid and another, Appellants, vs. Knight and others, Respondents.

*June 5*

June 23, *1920.*

*Schools and school districts: Creation of consolidated rural schools: Power of town hoards and of committee on common schools: Consolidation of districts: Certiorari: Form of judgment: Power of court to amend proceedings reviewed: Reversal of void order.*

1. A consolidated rural school district, which is different from the ordinary school district and has other- powers, such' as furnishing transportation to pupils, can be created only by holding an election-, of the voters of the district sought to be consolidated as provided by sec. 40.15, Stats. 1919; sec. 40.01 providing merely for the consolidation of ordinary school districts.

2. The judgment on *certiorari*must be one either of affirmance or-reversal in whole or in part.

*1393. Where petitioners wanted a consolidated rural school district so as to provide for transportation of pupils and to have a graded school, and the petition was directed to and acted upon by officers who had no power to create a consolidated rural school district as requested, but did have authority to consolidate school districts into an ordinary school district, the court cannot on *certiorari*amend the petition and all subsequent proceedings to show the consolidation of districts and not the- creation of a consolidated rural school district.

4. Though an order of a committee on common schools purport- ■ ing to create a consolidated rural school district is void for want of jurisdiction and therefore harmless, it may be reversed on *certiorari.*

Appeal from a judgment of the circuit court for St. Croix county: Geo. Thompson, Circuit Judge.

*Reversed.*

*Certiorari*to review the decision and order of the committee on common schools for St. Croix county consolidating school districts numbers 1, 2, and 4 in the town of Hudson into one district to be known as Consolidated rural school district No. 1 of the town of Hudson, St. Croix county, Wisconsin.

The proceedings were begun by a petition signed by voters of the three districts, directed to the town board of supervisors of the town of Hudson, praying that the town board unite said districts into one consolidated rural school district, and assigned as reasons therefor that under such a district transportation of pupils to and from school could be provided for and that a consolidated graded school is better than three ungraded schools.

The town board failed to act and an appeal was taken to the committee on common schools for St. Croix county as provided by sub. (2), sec. 40.01, Stats. 1919. Such appeal recited that a consolidated rural school district was sought to be created and that the petition gave reasons for its creation. The committee on common schools in their resolution that an order of consolidation be made designated the new district as Consolidated rural school district No. 1 of the town of Hudson, St. Croix county, Wisconsin: The *140decision on appeal gave it the same designation and so did the order of consolidation. The latter specifically declared that such new district “shall have all the powers and privileges granted to consolidated rural school districts by the statutes whatsoever.” The circuit court affirmed the order of the committee on common schools, and the relators appealed.

*Spencer Haven*of Hudson, for the appellants.

For the respondents the cause was submitted on the brief of *Varnum & Kirk*of Hudson.

Vxnje, J.

Sub. (1), sec. 40.01, Stats. 1919, gives to town boards of supervisors, upon petition or their own motion, the power to “alter school district boundaries, and to create, consolidate or dissolve school districts.” But such altered or consolidated districts remain school districts, having the usual powers of an ordinary school district and no more.

Sec. 40.15, Stats. 1919, provides for the creation of consolidated rural schools by the filing of a petition by fifteen per cent, of the electors and the holding of an election of the voters of the district sought to be consolidated, the vote to be canvassed by the school boards of the respective districts, and if’ a majority is cast for consolidation a consolidated rural school district shall be deemed organized. Such district has powers different from that of the ordinary school district, among others that of furnishing transportation to pupils within the district to and from school. Now it is evident that a consolidated rural school district was not formed as the statute requires, and that the town board of supervisors and the committee on common schools had no authority to create such a district. All they could do was to create an ordinary school district.

But it is claimed that that is all they did. If so, then the whole proceedings negative the fact, and to make the proceedings correspond to the fact they would have to be amended by the court. The amendment would have ,to in-*141elude the petition as well as all subsequent proceedings which call for a consolidated rural school district. Such amendment the court is powerless to make in any case, and especially so upon *certiorari,*where there must be either an af-firmance or reversal in whole or in part. *State ex rel. Nelson v. Emerson,*137 Wis. 292, 118 N. W. 836. The petitioners evidently wanted a consolidated rural school district so as to provide for transportation of pupils and to have a graded school. They did not proceed according to statute, and the body they applied to had no power to create what was wanted and what in terms is purported to be created. For that reason the order of the committee on common schools purporting to create a consolidated rural school district was null and void and should in all things have been reversed by the trial court.

Though the order was void for want of jurisdiction and therefore harmless, it may nevertheless be reversed on *cer-tiorari. State ex rel. R. Connor Co. v. Wattman,*110 Wis. 312, 85 N. W. 975.

*By the Court.*— Judgment is reversed, and cause remanded with directions to reverse the order of the *committee*on common schools for St. Croix county purporting to create Consolidated rural school district No. 1 of the town of Hudson, St. Croix county, Wisconsin.