City of Milwaukee v. Sewerage Commission of City of Milwaukee

• Decision Date: 20 December 1954
• Citation: 67 N.W.2d 624,268 Wis. 342
• Parties: CITY OF MILWAUKEE, a municipal corporation, Respondent, v. SEWERAGE COMMISSION OF THE CITY OF MILWAUKEE, Appellant.
• Court: Wisconsin Supreme Court

Page 624

67 N.W.2d 624

268 Wis. 342

CITY OF MILWAUKEE, a municipal corporation, Respondent, v. SEWERAGE COMMISSION OF THE CITY OF MILWAUKEE, Appellant.

Supreme Court of Wisconsin.

Dec. 20, 1954.

Further facts are set forth in the opinion.

Bitker & Marshall, Milwaukee, for appellant.

Walter J. Mattison, City Atty., Arthur Saltzstein, Asst. City Atty., Milwaukee, Richard F. Maruszewski, Asst. City Atty., Milwaukee, of counsel, for respondent.

Vernon W. Thomson, Atty. Gen., Roy G. Tulane, Asst. Atty. Gen., for the State.

STEINLE, Justice.

Consolidation of a town with a city is authorized by sec. 66.02, Stats. Procedure for such consolidation is specified in the statute.

Sec. 66.02, Stats., provides:

'Consolidation. Any town, village, or city may be consolidated with a contiguous town, village, or city, by ordinance, passed by a two-thirds vote of all the members of each board or council, fixing the terms of the consolidation and ratified by the electors at a referendum held in each municipality. The ballots shall bear the words, 'for consolidation,' and 'against consolidation,' and if a majority of the votes cast thereon in each municipality shall be for consolidation, the ordinances shall then be in effect and shall have the force of a contract. The ordinance and the result of the referendum shall be certified to the clerk of the consolidated corporation and by him recorded and certified as provided in section 61.11 if a village; or subsection (6) of section 62.06 if a city; to the county clerk, if a town and the certification shall be preserved as provided in subsection (6) of section 60.05, section 61.11 and subsection (6) of section 62.06, respectively. Consolidation shall not affect the pre-existing rights or liabilities of any municipality and actions thereon may be commenced or completed as though no consolidation had been effected.'

The City of Milwaukee in its amended complaint in substance alleges that pursuant to statutory authority the Common Council of the City of March 10, 1954, adopted ordinance No. 732, and that the Town Board of the Town of Lake on March 16, 1954, adopted ordinance No. 408, which are complementary and substantially identical ordinances providing for and fixing the terms of the consolidation; that on April 6, 1954, at the regular spring election, referenda were held in both communities for ratification of the ordinances; that the referendum in the City was conducted principally pursuant to provisions of secs. 66.02, 6.80, 10.40, 6.21, and 6.23, Stats., and that the referendum in the Town was held pursuant to secs. 66.02, 6.80, and 6.21, Stats.; that previous to the election of April 6, 1954, there was official publication of the ordinances in newspapers of the respective communities and that a copy of the Town ordinance was distributed to each occupied premises in the Town.

In the amended complaint there is also set forth the forms of the specific referendum questions submitted to the voters of the Town of Lake and the City of Milwaukee for the ratification of the ordinances in question.

It is further alleged that a majority of the votes cast in both the City and the Town were 'for consolidation;' that on April 9, 1954, the ordinances and the results of the referenda were certified to the Secretary of State; that the town ceased to exist as a separate entity and has been administered as part of the City from April 6, 1954.

There was further allegation in the amended complaint to the effect that four separate proceedings for annexation within the former Town of Lake had been commenced prior to April 6, 1954 (date of election), and were pending at the time; portions of the Town were posted for annexation to the City of Milwaukee in October 1951, in October 1952, and in May 1953, and that the entire north side of the Town adjoining the City of Milwaukee was posted for annexation to the City of St. Francis in October 1953.

Averment was also made in the amended complaint that on June 3, 1954, the City of Milwaukee requested the defendant Sewerage Commission to extend its main sanitary sewer to an area that was formerly in the Town of Lake, but which became included in the City of Milwaukee by virtue of the consolidation proceeding, in order that the City could proceed with the construction of service sewers in the area to be served thereby; that the Sewerage Commission declined to act upon the request of the City of Milwaukee, having adopted a resolution on June 10, 1954, wherein it determined to defer action until a proper legal determination had been made of the propriety of the use of funds of the commission for construction of sewers in the former Town of Lake.

In its decision on demurrer, the trial court determined that there are no constitutional objections to sec. 66.02, Stats., nor to the proceedings taken thereunder by the Town of Lake and the City of Milwaukee; that the posting of the City of St. Francis was void on its face and could be entirely disregarded; and that pending proceedings for annexation to the City of Milwaukee were not a bar to consolidation of the same territory with the City of Milwaukee.

Five questions have been raised upon this appeal. They are:

1. Is sec. 66.02, Stats., an unconstitutional delegation of legislative power to towns contrary to Article IV, Section 1, of the Wisconsin Constitution?

2. Is sec. 66.02, Stats., void for uncertainty in that it sets forth no procedure for the conduct of the referendum therein required?

3. Were the referendum questions presented to the electors properly and legally framed without the inclusion of the full text of the ordinances thereby submitted for ratification?

4. Did the several proceedings for annexation of parts of the former town, which had been commenced prior to, and were pending at the time of the commencement of the consolidation proceeding, preclude a consolidation of the same area?

5. Did the pending annexation proceedings destroy the contiguity of the town and the city for purposes of consolidation?

Consolidation merges two or more political units. It involves surrender of all power of one unit to the other, or to a new consolidated government, on the basis of terms agreeable to both. As a result of consolidation the government of one unit is disbanded, its assets and liabilites are taken over by the other, and citizens of the disbanded unit are thereafter eligible for all of the rights and duties of the remaining consolidated government. Consolidation, like annexation, is a method provided by the Legislature for the integration of adjacent areas. Annexation is limited to the addition of unincorporated territory to a city.

With reference to the first question presented upon this appeal, it is the position of the appellant, Sewerage Commission, that sec. 66.02, Stats., is an unconstitutional delegation of legislative power to towns,--being contrary to Article IV, Section 1 of the Wisconsin Constitution which provides that the legislative power shall be vested in a senate and assembly. In support of its contention, appellant argues principally, that except as authorized by the Constitution the Legislature cannot delegate legislative power; that the Constitution contains no provision authorizing delegation of legislative power to towns, or conferring home rule power upon towns; that the adoption of a consolidation ordinance by a town board under sec. 66.02, Stats., is an exercise of legislative power; that the statute is not a mere delegation of authority concerning administrative detail; that while the statute is not an option law, there is an authorization of ordinances which have the characteristic of an option law. Appellant does not assail the right of the City of Milwaukee to enter upon a consolidation program.

Respondent maintains that the statute is neither a delegation of legislative power to a town nor an option law; that it is a complete legislative enactment in itself, prescribing the condition upon and proceedings under which cities, towns and villages may consolidate, and that it is not an unconstitutional delegation of legislative power to towns.

Towns are political subdivisions and governmental agencies of the state. A town is a body corporate, sec. 60.01, Stats. It is denominated a quasi-municipal corporation as distinguished from a municipal corporation, State ex rel. Bare v. Schinz, 1927, 194 Wis. 397, 399, 216 N.W. 509, although in a generic sense a town sometimes is referred to as a municipality. It is within the acknowledged power of the Legislature to organize towns and change the boundaries of such as are already organized. Slauson v. City of Racine, 1861, 13 Wis. 398. Town boundaries are under the control of the Legislature. Zweifel v. City of Milwaukee, 1925, 185 Wis. 625, 635, 201 N.W. 385. There is no constitutional restriction forbidding the Legislature from providing a method by which boundaries can be fixed. People v. Town of Ontario, 148 Cal. 625, 84 P. 205.

The Legislature is prohibited by Article IV, Section 31 of the Wisconsin Constitution from enacting any special or private law regarding the incorporation of a town, city or village. There is no constitutional limitation prohibiting the Legislature from creating, enlarging, diminishing or abolishing towns. Nor is there any constitutional restriction as to the Legislature's authorization of the consolidation of cities, towns and villages. Clearly such matters are entirely within the realm of the Legislature's power and discretion.

Except as authorized by the Constitution, the Legislature cannot delegate power to make a law. State ex rel. Van Alstine v. Frear, 1910, 142 Wis. 320, 324, 125 N.W. 961. It is well settled, however, that while the Legislature cannot delegate its power either to declare whether there shall be a law,--or to determine the general purpose or policy to be achieved by the law,--or to fix the limits within which the law shall operate,--nevertheless, it can make...