De Bauche v. City of Green Bay

• Decision Date: 11 January 1938
• Citation: 227 Wis. 148,277 N.W. 147
• Parties: DE BAUCHE v. CITY OF GREEN BAY et al.
• Court: Wisconsin Supreme Court

227 Wis. 148

277 N.W. 147

DE BAUCHE

v.CITY OF GREEN BAY et al.^*

Supreme Court of Wisconsin.

Jan. 11, 1938.

Appeal from a judgment of the Circuit Court for Brown County; Henry Graass, Judge.

Reversed.

Action brought by Seraph De Bauche January 25, 1937, on his own behalf and on behalf of all other taxpayers similarly situated against the city of Green Bay and its officers to restrain them from proceeding further under an annexation ordinance. From judgment dismissing his complaint, plaintiff appeals.

Petitions requesting the annexation of a portion of the town of Preble to the city of Green Bay were presented to the council of the city. These purported to have been signed by one hundred sixty-seven electors of the territory to be annexed. As found by the circuit court, two hundred ninety-nine qualified electors resided within the territory to be annexed, and the majority required to render the petition effective would thus be one hundred fifty. The court found that thirteen names must be stricken from the petitions for causes which are not contested on this appeal; this left one hundred fifty-four names, a sufficient number, on the petition. The court also found that thirteen qualified electors had not signed the petition in their own handwriting, but that their names had been signed by others for them, in their presence and with their knowledge and consent. These electors were concededly able to write. The trial court concluded that these thirteen signatures could validly be counted; that the ordinance annexing the territory was duly enacted by the city council of Green Bay; and that the complaint should be dismissed.

Alk, Kresky & Cohen, of Green Bay, for appellant.

Thos. C. Dwyer, of Green Bay, for respondents.

FAIRCHILD, Justice.

[1] The thirteen challenged names on the petition are to be rejected if section 370.01(19), Stats., providing, “in all cases where the written signature of any person is required by law it shall always be the proper handwriting of such person or in case he is unable to write, his proper mark or his name written by some person at his request and in his presence,” applies to the signatures required by section 62.07, Stats., requiring an annexation petition to be “signed by a majority of the electors.” The only question submitted to us is, as stated by defendants: “Whether in this case a husband signing for his wife or a wife signing for her husband, in the presence of the other party and with their knowledge and consent is a sufficient signing.” In interpreting section 62.07, consideration must be given to a method devised by the Legislature for the particular purpose of getting an expression of judgment from electors residing in a particular community. The peculiar relation between the official characters of the parties to the process is of greater consequence by reason of the governmental nature of the acts involved.

An elector who desires the annexation to an adjacent city of the district in which he resides must express his decision to join in the petition for such annexation by subscribing his own name if he can write. Among the cases called to our attention by defendants is the case of State ex rel. Patton v. Myers, 127 Ohio St. 95, 186 N.E. 872, 90 A.L.R. 570. That case deals with a petition. Article 2, section 1, of the Constitution of that state provided: “Each signer *** must be an elector of the state and shall place on such petition after his name the date of signing and his place of residence. *** The names of all signers to such petitions shall be written in ink, each signer for himself.” The interpretation was that the signature must be that of the elector, although the date and residence might be filled in by someone else “at the direction and with the authority of the elector signing the the petition.” The requirement there of a proper individual signature may appear more emphatically to have been set out than in our statute because of the use of the words “each signer for himself.” We cannot agree with the implication of the Patton Case that it was necessary to have those words in the law in order to require a proper personal signature because the authorization to act in this particular is by the government to a being that can have ability to act only by reason of the peculiar relation between the government and citizen. The term “elector” is descriptive of a citizen having certain constitutional and statutory qualifications. Acts in this matter are by permission of the Legislature, and section 62.07 does not authorize the delegation to a deputy of responsibility as an elector. It certainly was expected that electors who could write would sign their individual names, not that some would and that others would authorize an agent to write them and still others permit their names to be signed by solicitors. If the statute be construed to permit some to sign by agent, it would permit all to do so. We are referred to cases where wills, mortgages, and other writings, peculiarly private or commercial in character, have been held valid although the signature upon the instrument was placed there by authorization and not in the handwriting of the principal. In re Will of Mueller, 188 Wis. 183, 205 N.W. 814, 42 A.L.R. 951. They serve to point out a distinction which must be recognized between cases where the common-law rule governing the affixing of signatures applies and those situations falling in the class that have been taken out from under that rule by statutes, between the cases where authorization is consistent with the purpose sought to be effected and those cases in which delegation of...