Golden v. Green Bay Metropolitan Sewerage Dist.

• Citation: 210 Wis. 193,246 N.W. 505
• Parties: GOLDEN v. GREEN BAY METROPOLITAN SEWERAGE DIST. ET AL.
• Decision Date: 10 January 1933
• Court: United States State Supreme Court of Wisconsin

210 Wis. 193

246 N.W. 505

GOLDEN

v.GREEN BAY METROPOLITAN SEWERAGE DIST. ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1933.

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

Action by W. L. Golden, on behalf of himself and all others similarly situated, against the Green Bay Metropolitan Sewerage District and others. From a judgment dismissing the complaint, plaintiff appeals.--[By Editorial Staff.]

Affirmed.

Action commenced by plaintiff, as a taxpayer, on his own behalf, and on behalf of all others similarly situated, to restrain defendants from issuing bonds, levying a tax, or borrowing money as a sewerage district or as commissioners of such district; and to have section 66.20, Stats., declared unconstitutional under section 269.56, Stats. Defendants answered, and, after a trial, the court ordered judgment dismissing the complaint upon the merits, and declaring section 66.20, Stats., to be constitutional. Plaintiff appealed from that judgment.Evans & Merrill, of Green Bay, for appellant.

Meyer M. Cohen, of Green Bay (Isadore G. Alk, of Green Bay, of counsel), for respondent.

John W. Reynolds, Atty. Gen., Samuel Bryan, Asst. Atty. Gen., and William Ryan, of Madison, amici curiæ.

FRITZ, J.

On September 22, 1931, a petition, which in form and substance complied with section 66.20 (4) (a), Stats., was filed in the county court of Brown county. That petition prayed for the establishment by the county court of the Green Bay Metropolitan Sewerage District to be composed of certain described territory, which included the cities of Green Bay and De Pere in their entirety, and parts or all of the towns of Preble, Allouez, De Pere, Lawrence, Ashwaubenon, Hobart, and Howard, in Brown county. Upon a hearing, held after due notice had been given to all concerned, the county court found, upon conflicting evidence, “that much of the sewerage from the city of Green Bay and from the towns of Allouez and Preble has been allowed to flow into the East River, and that the said river is in a grossly polluted condition by reason thereof; that public health, welfare, safety, comfort and convenience require the cleaning up of the said East River without unnecessary delay; that the city of Green Bay and towns of Allouez and Preble have agreed by stipulation that a Metropolitan Sewerage District be formed, as hereinafter set out; that the pollution of the lower Fox River is due largely to contributions of sewerage from the upper Fox River area, and to the flow and back-flow of the pollution from the East River; and for these reasons the public health, comfort, safety and convenience do not now require the organization of all of the territory described in the petition or any of the territory omitted and not included in the territory hereby organized; and the public welfare will not be promoted by the inclusion of said omitted territory in a Metropolitan Sewerage District at this time; that the Metropolitan Sewerage District should be organized in the interests of the public health, welfare, safety, comfort and convenience, and should consist of” certain territory, which was described in detail, and which included only parts of the towns of Preble and Allouez, which were within the watershed of the East river, and also all of the city of Green Bay. In connection with those findings the county court concluded, “that public necessity requires the organization of the Green Bay Metropolitan Sewerage District within boundariesas described in the findings of fact, and that the organization of such district is conducive to the preservation of the public health, safety, comfort, convenience and welfare”; and that court ordered judgment creating and organizing the district for the limited territory described in the findings. Judgment was entered accordingly, and no appeal was taken from that judgment.

[1][2] Instead, the plaintiff herein collaterally attacked that judgment in this independent action, which he commenced in the circuit court, and in which he prays for judgment restraining defendants from issuing bonds or borrowing money or levying taxes or doing any other act as commissioners of said sewerage district; and declaring section 66.20, Stats., and chapters 294 and 349, Laws 1931, unconstitutional. In this action plaintiff contends that the county court judgment was void because that court had no jurisdiction whatsoever, under the only petition which was filed, to form a district consisting of less territory than the area described in that petition. In this connection it appears that the district as organized has somewhat less than one-half of the area, but has 38/43 of the population, and 11/13 of the assessed valuation of the area, which was to be included in the district as originally proposed in the petition. Plaintiff contends that, inasmuch as it appeared on the hearing in the county court, and that court found that public health, etc., and the promotion of the public welfare do not require the organization of the entire territory, as proposed, or the inclusion of any of the territory omitted from the district as finally organized, the jurisdiction and power of the county court were limited to the entry of judgment dismissing the proceedings. That contention is based on section 66.20 (8) (b), Stats., which is as follows: “If the court finds that the territory set out in the petition should not be incorporated into a district, it shall dismiss said proceedings and tax the costs against the signers of the petition.”

However, upon a consideration in their entirety of the provisions of section 66.20, Stats., relating to the creation of metropolitan sewerage districts, it does not seem that a dismissal, without any alternative as to relief, is demanded by section 66.20 (8) (b), Stats., in every case in which a substantial portion, although not all, of the territory proposed in a petition should be organized as a sewerage district in furtherance of the purposes of section 66.20, Stats. Thus, that the statute did not intend to limit the court's power to act to an area, described precisely and with unalterable finality in the petition, is indicated by the wording of section 66.20 (4) (c) (3), Stats., which, in prescribing the contents of the petition, requires but “a general description of territory to be included in the proposed work.” On the other hand, section 66.20 (8) (a), Stats., relating to the judgment to be entered, expressly authorizes and directs the court, by its findings, to “establish the boundaries” of the district which it declares organized. Furthermore, that the matter of detaching territory from a district as originally proposed, or even as originally organized, is not deemed, under the statutes, of such controlling significance that it can only be adjudged upon the consent of, or notice to, the signers of the original petition, is indicated by the entire omission of any requirement as to such consent or notice in the provisions, which authorize the subsequent detachment of lands by the commissioners, in the first instance, and by the county court on an appeal. See subdivisions (f) (2) and (4) of section 66.20 (8), Stats. Manifestly, all of those statutory provisions indicate that some changes in the area as originally described in a petition are permissible; and that the court is authorized to adjudge such changes without notice to, or the consent of, the original petitioners, whenever it finds, upon evidence duly submitted, that public health, etc., do not require the inclusion of all of the area originally proposed, in the district as finally organized. The question as to what territory, if any, is to be detached is an issue of fact to be determined in each case as the question arises. State ex rel. Holland v. Lammers, 113 Wis. 398, 415, 86 N. W. 677, 89 N. W. 501.

[3] However, even if the county court did err in deciding that issue of fact, or in construing the statute by erroneously concluding that it authorized the organization as a sewerage district of but a part of an entire area proposed originally in a petition, its decision in either of those respects would constitute judicial error in a proceeding in which it had jurisdiction over the subject-matter as well as the parties. Consequently, as to both its final adjudications, they are binding and res adjudicata in the absence of reversal or modification on an appeal therefrom. The principles and conclusions stated in the following excerpt from the opinion in Stone v. Little Yellow Drainage Dist., 118 Wis. 388, 392, 95 N. W. 405, 406, are applicable in the case at bar: “That jurisdiction generally over the subject-matter is attempted to be conferred by these statutes cannot be doubted. That such jurisdiction was aroused by the filing of a petition complying at least substantially with those statutes is made plain by the record as set forth in the complaint, and from the same record it is apparent that notice in compliance with that statute was served upon the various persons interested--certainly upon the plaintiff here. Thence results complete jurisdiction of the persons so served. From all these it results by primary legal logic that a decision upon all the facts presented and upon a construction of the law governing the situation, followed by rendition of a final order or decree in accordancewith such decision and construction, was also within the jurisdiction of the court. Such conclusion is in no wise controverted by a showing that any facts were decided wrong, or that the law was misconstrued. A remedy deemed by the legislators complete for the correction of any such errors existed in an appeal from the final order.”

To the same effect see State ex rel. Thompson v. Eggen et al., 206 Wis. 651, 238 N. W. 404, 240 N. W. 839.

[4][5][6] In section 66.20, Stats., the remedy by appeal from the county court's final judgment is authorized in subdivision (8) (e), which is as follows: “The decree of the...