#### State ex rel. Hebert and others, Respondents, vs. Carlson, imp., Appellant.

*September 20*

October *8, 1912.*

*Joint school districts: Alteration: Jurisdiction: Failure to give notice:*Certiorari: *To whom directed: Who may sue out the writ: Laches.*

1. A writ of *certiorari*to review tbe action taken at a joint meeting of two town boards and a village board to pass upon a petition for alteration of school district boundaries, was directed, among others, to the town clerks, to the village clerk who had acted as clerk of said joint meeting, and also to his. successor in office. The former village clerk made return that he had kept a record of the meeting and had turned over all papers pertaining thereto to his successor. The successor-made return of the records as within his official custody. *Beld,*that the writ could not be quashed for misdirection.

2. Unless the statutes (secs. 418, 419gs, Stats.: Supp. 1906) relating to notice of the meeting to pass upon a proposed alteration of a school district are complied with there is no jurisdiction to, make such alteration.

*5853. Resident taxpayers in- a school district, having children of school age, have such an interest in the matter as entitles them to invoke the remedy of *certiorari*to review a proceeding to alter Such district.

4. The fact that a writ of *certiorari*to*review a proceeding to alter a school district was quashed for misdirection and because the relators did not show that they had an interest entitling them to ■ sue out the writ, does not avail to show unnecessary delay or laches on the part of relators who promptly thereafter applied for a second writ.

Appeal from a judgment of tbe circuit court for Marathón county: A. H. Beid, Circuit Judge.

*Affirmed.*

This is a *certiorari*proceeding to review tbe action of tbe town, boards of tbe towns of Unity and Brighton and tbe village board of tbe village of Unity, parts of which towns and village constituted a joint school district in Clark and Marathon counties, acting jointly, in attempting to detach from joint school district No. 1 of the towns of Unity and Brighton and the village of Unity certain territory, and in attaching part of the detached territory to joint school district No. 5 of the towns of Unity and Brighton and the balance to school district No. 3 of the town of Brighton.

The petition for the writ alleges- that the relators *Cliarles Hebert*and *Charles Nelson*are resident freeholders and taxpayers in joint school district No. 5 and that they have children of school age attending school in the district, and that the relator *Paul Bruer*is a resident freeholder and taxpayer in school district No. 1 and that he has children of school age attending the district school. The petition alleges that the proceedings taken by the joint meeting of the town and village boards in altering the school district boundaries are void, in that no notice was given to the clerks, to any of the other officers, or to the inhabitants of the school districts affected of the proposed joint meeting, that there was no return of any notices of the meeting, that the record of the proceedings of the meeting was not properly kept, that there was no legal *586petition sufficient to confer jurisdiction on tbe officers at tbe joint meeting, that tbe meeting was not beld at tbe school bouse as tbe statutes require, and tbat tbe place of meeting was not designated as other than tbe school bouse on tbe ground of convenience, tbat tbe order of alteration was never properly executed, tbat tbe order was not filed with either of tbe clerks of tbe school districts affected by tbe alteration, and tbat tbe clerks have bad no legal notice of tbe order.

Tbe return to tbe writ by the respondent who was clerk of tbe village at tbe time tbe order was made is tbat be sent out notices of tbe meeting to each member of tbe several boards interested at least five days before tbe meeting, tbat upon request be acted as clerk of tbe meeting and kept a record of tbe proceedings, and tbat upon surrendering bis office of village clerk be turned over to bis successor all papers pertaining to tbe meeting.

Tbe return of his successor, tbe present clerk of the village, showed a petition of tbe supervisors of tbe town of Brighton asking tbe alteration of tbe district, tbe record of tbe meeting showing tbat tbe petition bad been read and tbe subject opened for discussion, that a ballot bad been taken and tbe petition granted, and tbe order making tbe alteration signed by tbe members of tbe joint meeting. There was no record of any notices having been given or tbat tbe order issued bad been acted upon and signed formally by tbe members.

Tbe officers to whom tbe writ was directed made return to tbe writ, but none of them and neither of tbe towns nor tbe village of which they were tbe officers have appeared to oppose tbe granting of tbe relief prayed for by tbe relators. *A. F. Garlsonj*a resident and taxpayer and a district officer of one of tbe districts affected, was allowed to present objections to tbe granting of tbe relief asked.

Tbe court permitted an amendment to tbe petition for tbe writ which shows tbat tbe relator *Gliwrles Hebert*was at all of tbe times mentioned tbe school district clerk of one of tbe *587districts affected bj tbe action taken at tbe joint meeting of tbe town and village boards.

One of tbe objections made to tbe granting of tbe relief prayed for in tbe petition was tbat tbe petitioners were guilty of lacbes wbicb should bar them from tbe relief asked. Tbis proceeding was commenced promptly” after tbe quashing of a previous writ, wbicb was quashed because of misdirection and for failure to show a proper interest in tbe relators.

Tbe record fails to show tbat tbe members of tbe town and village boards were notified of tbe time and place of tbe joint meeting and tbat tbe relator *Hebert*as clerk of bis school district bad received notice pursuant to sec. 419a and sec. 418, Stats. (Supp. 1906), of tbe time and place of tbe joint meeting to act upon tbe proposed alteration, and, since tbe record wholly failed to show such notice, tbe court held tbat tbe joint meeting was without jurisdiction and tbat tbe attempted alteration was void. ' •

Tbis is an appeal from tbe judgment granting tbe prayer of tbe petition.

Tbe cause was submitted for tbe appellant on tbe brief of *JRegner & Single,*and for tbe respondents on tbat of *O. B. Edwards,*attorney, and *Kreutzer, Bird, Bosenberry & Ohoneshi,*of counsel.

SiebecKEr, J.

It is urged tbat tbe *certiorari*proceeding should have been dismissed because tbe writ was not directed to tbe proper party. Tbe argument is tbat tbe only person on whom *the*statute could be held to impose the duty of keeping tbe record of tbe proceedings of the joint meeting of tbe town and village boards for the alteration of tbis school district is tbe person who acted as clerk of tbis joint meeting when they met to act in the matter. Pursuant to sec. 2421, Stats. (Supp. 1906: Laws of 1901, ch. 146), tbe writ should be addressed to tbe clerk or clerks of tbe towns and villages interested in tbe proceeding to alter the boundaries of tbe dis*588trict. Tbe clerk of tbe village of Unity acted as clerk of tbe joint meeting of tbe town and village boards, and as sucb clerk acted as clerk at this meeting. He bad custody of tbe records and turned tbem over to bis successor in office, who was a party to tbe writ and made return of tbe records as witbin bis official custody. Tbis makes bim a proper party and suffices to sustain tbe proceeding. Hence tbe court properly refused to quasb tbe writ for misdirection.

It is contended that, it appears from tbe return that tbe proceedings were irregular and void for want of notice being given as required by secs. 418 and 419a, Stats. (Supp. 1906), to tbe clerks of tbe school districts affected by tbe proceedings of tbe joint meeting of tbe town and village boards in altering tbe boundaries of tbe district, because no copies of tbe order attempting to alter sucb boundaries were recorded or filed in tbe offices of tbe clerks of tbe districts interested, and because tbe required notices of tbe time and place of tbe meeting to consider tbe application for alteration were not served on tbe members of tbe town and village boards, which meeting is required to be held at tbe school bouse of tbe joint distinct unless some other convenient place be designated. It is manifest that tbe requirements of tbe statutes respecting tbe giving of notice were not complied with, and that sucb omission renders tbe attempted proceedings and tbe alteration of tbe district void. *State ex rel. Bidgood v. Clifton,*113 Wis. 107, 88 N. W. 1019; *State ex rel. Stengl v. Cary,*132 Wis. 501, 112 N. W. 428.

Tbe trial court held that tbe relators, *Hebert, Nelson,*and *Bruer,*as taxpayers and residents of tbe old districts having children who attended school, were not sufficiently interested in tbe determination altering tbe districts to entitle them to institute tbe *certiorari*proceedings. They were not made parties to tbe record of tbe proceeding attempting to alter tbe district. It is apparent that tbe town and village board members, who attempted to make tbe alteration, took no step— naturally they would be averse — to test tbe validity of their *589action, in. a *certiorari*proceeding. Nor did the boards of the school districts interested take any step to inquire into the validity thereof. Unless, then, the resident taxpayers and parents of children of school age of the district could act in the matter it is evident they would be remediless under the facts and circumstances shown. The interest of resident electors and taxpayers in school district affairs pertaining to the creation and alteration of districts was well expressed in the opinion of this court in the case of *State ex rel. Foster v. Graham,*60 Wis. 395, 19 N. W. 359, wherein Mr. Chief Justice Cole, in discussing the object and purpose of the notices required to be given the district clerks and the members of the school boards, states:

> “In this way, presumably, information in regard to the proposed alteration will come to the knowledge of the people of the district, who can have an opportunity to express their views upon the alteration before the town boards when they meet to decide upon it. This is obviously the intent and purpose of having the notices given. The formation, alteration, and dissolution of school districts are matters which vitally concern the people, and in which they take a most lively interest.”

When such interest also involves that of a taxpayer of the district, whose children of school age are affected in their school facilities, it manifestly presents a case of real and direct interest in the matter which may be seriously injured by the action of the town board. The relators as resident taxpayers of the district have shown that they have such an interest, and this entitles them to invoke the remedy of *cer-*tiorari..1 Their complaint brings them within the principle declared in *State ex rel. Milwaukee Med. College v. Chittenden, 127*Wis. 468, 107 N. W. 500, where the court declared:

> “It is not an absolute essential to competency in such cases that the petitioner should be a party to the record in the proceeding sought to be reviewed, nor necessary that he should be the party wronged, as regards a proper citation being essential to jurisdiction of the subject matter.”

*590*State ex rel. Graef v. Forest Co. 74*Wis. 610, 43 N. W. 551, is cited, where *certiorari*to test the validity of the county board’s action was sustained at the instance of a taxpayer. In the following cases *certiorari*proceedings to review the action of town boards for altering school district boundaries were instituted by residents of the districts: *State ex rel. Graff v. Steele,*106 Wis. 475, 82 N. W. 295; *State ex*rel. *Bidgood v. Clifton,*113 Wis. 107, 88 N. W. 1019; *State ex rel. Foster v. Graham,*60 Wis. 395, 19 N. W. 359. The right to institute *certiorari*proceedings in this case seems well sustained upon principle and in practice, as shown by the foregoing adjudications. See, also, *Lutien v. Kewaunee,*143 Wis. 242, 126 N. W. 662, 127 N. W. 942, and sec. 497, Stats. (1898), which entitles residents of the districts affected to an appeal in such a proceeding if they deem themselves aggrieved. The trial court erroneously held that the relators suffered no injury entitling them to invoke the aid of a court to test the validity of the proceedings to alter the districts. In arriving at this conclusion the court took the view that,, within the holding in the cases of *State ex rel. Sullivan v. Drake,*130 Wis. 152, 109 N. W. 982; *State ex rel. Skogstad v. Anderson,*130 Wis. 227, 109 N. W. 981; and *State ex rel. Milwaukee Med. College v. Chittenden, supra,*an enforcement of the decision altering the district would not involve any special, immediate, and direct injury to the relators’ interests. This, for the reasons stated above, cannot be sustained.

The claim that the relators were guilty of laches is not sustained. They proceeded with due diligence after notice of the attempted action by the town and village boards. The fact that the first writ was quashed does not avail to charge them with unnecessary delay in instituting 'this, the second proceeding to review the action of the boards. The trial court properly exercised its discretion in awarding the writ.

*By the Court.*— The judgment appealed from is affirmed.