State Ex Rel. Sanderson v. Amundson , 236 Wis. 523 ( 1940 )

Detachment of lands under sec. 40.85, Stats. 1937. On or about the 7th day of July, 1939, certain electors residing in joint school district No. 1 of the village of Osseo, town of Sumner, Trempealeau county, filed a petition of detachment, pursuant to which the school district board of joint school district No. 1 and the town board of the town of Sumner made an order on July 21, 1939, detaching and attaching certain territory. An appeal was taken to the appeal board created by sec. 40.85, Stats. 1937. On September 2, 1939, the appeal board set aside the orders of detachment and attachment, whereupon the relator brought this certiorari action in the circuit court for Trempealeau county. The circuit court upheld the decision of the appeal board and judgment of affirmance was entered accordingly on the 25th day of September, 1939, from which judgment the relator appeals. Upon the oral argument it was disclosed that sec. 40.85, Stats., under which the detachment and review proceeding were had, was repealed by ch. 342, Laws of 1939. The language of the act is as follows:

"Section 1. Section 40.85 of the statutes is repealed.

"Section 2. This act shall take effect upon passage and publication."

The act was approved on August 15th and published August 17, 1939. The order of the appeal board is dated September 2, 1939, sixteen days after the act creating the appeal board had been repealed. There being no saving clause in ch. 342, Laws of 1939, the appeal board, which was created by sec. 40.85 (10), Stats., ceased to exist on the day ch. 342, Laws of 1939, went into effect. Nor is the board continued by operation of sec. 370.04, Stats., which relates to civil and criminal actions.

It requires no argument to show that the proceeding before the appeal board was not an action or a special proceeding. The appeal board not being in existence on the day when it made its order, the order is void. The order of the district and town boards, not having been legally vacated, still stands.

By the Court. — Judgment reversed, and cause remanded with directions to the circuit court to enter judgment vacating and setting aside the order of the appeal board.