#### The State ex rel. Bidgood, Appellant, vs. The Supervisors of the Town of Clifton, Respondents.

*January 11*—

January *28, 1902.*

Certiorari: *Practice: To whom, writ should be directed: Motion to supersede writ: Schools and school districts: Changing boundaries: Jurisdiction: Presumptions: Waiver: Appeals to state superintendent: Adequate remedy.*

1. A writ of *certiorari*commanding tlie supervisors of a town to certify and return to the circuit court all flies, papers, entries and orders used in mating an order detaching lands from certain school districts and creating new districts, is not misdirected, in that it runs to the supervisors of the town instead of to the town clerk.

2. A motion to supersede a writ of *certiorari*is, in ..effect, a demurrer to the relation, and admits the facts therein alleged.

3. A town hoard acquires no jurisdiction to alter a school district without giving to the clerks of the district affected thereby the notice required by sec. 418, Stats. 1898; such notice cannot he waived by the district officers, the giving thereof will not he presumed, and the order of the hoard, reciting that due notice was given, is not *prima facie*evidence of that fact.

4. Under sec. 497, Stats. 1898, providing for appeals to the state superintendent from the decision of a town hoard in altering a school district, the state superintendent cannot review such action of the town hoard where it was without jurisdiction because of failure to give the notices required by sec. 418.

5. In such case it is error to supersede a writ of *certiorari*on the ground that the relator has an adequate remedy by statutory appeal to the state superintendent.

Appeal from an order and judgment of tbe circuit court for Grant county: Geo. ClemeNtsoN, Circuit Judge.

*Reversed.*

Eor tbe appellant there was a brief by *Gla/rlc & Taylor,*and oral, argument by *8. H. Taylor..*

*Geo. B. Glementson,*for tbe respondents.

*108Cassoday, C. J.

Tbis, is an appeal from a judgment superseding and dismissing a writ of *certiorari*issued by tbe trial court to tbo supervisors of tbe town of Clifton, in Grant county, commanding tbem to certify and return to that court all tbe files, papers, entries, and orders filed or used in making or attempting to make an order to detacb certain tracts of land from school districts Nos. 2, 3, and 8 of said town, and out of tbe lands so detached to create two new districts, to be known as school districts Nos. 3 and 9.

It is claimed by tbe defendants that tbe writ of *certiorari*was misdirected, in that it runs to tbe supervisors of tbe town, instead of tbe town clerk. But tbis court has repeatedly held, in effect, that service upon tbe town clerk would have been a nullity, since “a town board is a permanent body, and when its acts are sought to be reviewed on *certiorari*tbe writ should be directed to and served on its members as such board.” *State ex rel. Graff v.*Everett, 103 Wis. 269; *State ex rel. Clancy v.*McGovern, 100 Wis. 666; *State ex rel. Tibbits v.*Milwaukee, 86 Wis. 376.

Tbe verified petition for tbe writ and tbe writ allege that tbe supervisors were without jurisdiction to so alter tbe school districts, for several reasons,. among which are that they bad failed “to give tbe proper notice to tbe freeholders and electors to be affected by tbe proposed alteration,” and because they bad failed “to give notice as required by law to tbe clerks of tbe several districts affected by tbe contemplated change,” and because “tbe several clerks of tbe districts proposed to be changed” bad failed “to give notice to tbe other members of their respective boards, as required by law,” and because tbe town board bad failed “to meet and decide” concerning tbe alteration of such districts pursuant to notice. Tbe motion of tbe defendants to supersede tbe writ must be regarded, in effect, as a demurrer toMhe relation ; and hence as admitting tbe facts therein alleged. *State ex rel. Dalrymple v. Milwaukee Co.*58 Wis. 4, 6; *State ex*
      *109
      *rel. Tibbits v. Milwaukee,*86 Wis. 376; *State ex rel. Ollinger v.*Manitowoc, 92 Wis. 546, 549.

The question recurs whether the failure to give any of such notices prevented the supervisors of the town from acquiring jurisdiction. The statute provides that:

> “Whenever the town hoard shall contemplate an alteration of a district they shall give at least five days’ notice in writing to the clerk of the district or districts to he affected thereby, stating in such notice when and where they will he present to decide upon such proposed alteration; and such clerk or clerks shall immediately notify the other members of the hoard.” Sec. 418, Stats. 1898.

Under that statute it has been held by this court that:

> “A town hoard has no power to alter the boundaries of a school district unless proper notice is given. The giving of such notice will not he presumed; nor is the order of the hoard, reciting that due notice was given, *prima facie*evidence of the fact; nor can the officers of the district waive the notice.” *State ex rel. Foster v. Graham,*60 Wis. 395.

And again, it was held that:

> “The hoard acquires no jurisdiction to make the change unless the giving of such notice he authorized at a meeting of the board duly held.” *State ex rel. Graff v.*Steele, 106 Wis. 475.

That the town hoard had no jurisdiction • is thus determined.

The trial court did not pass upon the question of jurisdiction, hut superseded and dismissed the writ upon the sole ground that the relator “had an adequate remedy by statutory appeal” to the state superintendent, under sec. 497, Stats. 1898. In support of such ruling counsel rely upon *Gregory v.*Dixon, 7 Wash. 27. In that case the writ was issued to review the action of the county superintendent of schools in establishing a new school district. The writ was quashed on the ground that the statute gave a right to review such aetidn on appeal to the hoard of county commissioners. *110There is nothing in the report of the case to indicate that the conntj superintendent so acted without jurisdiction, except the allegation of the appellant 'that he had acted “arbitrarily, wrongfully, and *without*jurisdiction.” On the contrary, the county commissioners, under the statute of that state, had “power to summon witnesses,” and hear the case *de*novo, and make a final determination. But the question of his jurisdiction is nowhere discussed in the case; and there are no facts stated indicating a want of jurisdiction. The only discussion on the subject of jurisdiction relates to the jurisdiction of the superior court to entertain the writ. The case follows a decision in Illinois, where it was held, in effect, that the writ would not be allowed “where the right of review of the proceedings upon appeal exists,’\and that there was in that case “such right of review by an appeal to the superintendent of schools of the county.” *Trustees of Schools v.*Shepherd, 139 Ill. 114. To the same effect, *Wright v. Highway*Comm’rs, 150 Ill. 138. The opinion in *Gregory v. Dixon, supra,*also refers to 3 Am. & Eng. Eney. of Law (1st ed.), 62—64, where it is stated, in effect, that it “is not a writ of right, except when made so by statute, or when issued at the instance of the sovereign power; but it rests in the sound discretion of the court to grant or refuse it under the circumstances of the case;” that “the record of an inferior court or other tribunal of matters in its jurisdiction cannot be disputed by other evidence, nor its findings of fact, when supported by any competent evidence.” Numerous instances are there stated when the writ will and when it will not be entertained. The important rule here applicable is that “by such writ inferior judicatóries are kept within the bounds of their jurisdiction.” 4 Ency. of PL & Pr. 10. So it appears that the authorities thus relied upon are in harmony with the numerous adjudications in this state cited by counsel for the appellant to the effect that the writ will be entertained to review jurisdictional questions. *111Some of the cases are cited above. Here, as indicated, and as in effect held by tbe adjudications cited, the town board had no jurisdiction to alter the school districts for want of the requisite notices. Such action of the town board being a nullity for want of jurisdiction, the state superintendent could not review the same on appeal. Such appeal would have given to the state superintendent no more authority to act in relation to such alteration of the districts than he would have had if the town board had not acted at all, and hence an appeal would not have given to the relator an adequate remedy.

*By the Oowrt.*— The order and judgment of the circuit court are reversed, and the cause is remanded with direction to overrule the motion to supersede the writ, and for further proceedings according to law.