In re Vill. of Chenequa

• Citation: 221 N.W. 856,197 Wis. 163
• Parties: IN RE VILLAGE OF CHENEQUA.
• Decision Date: 07 November 1928
• Court: United States State Supreme Court of Wisconsin

197 Wis. 163

221 N.W. 856

IN RE VILLAGE OF CHENEQUA.

Supreme Court of Wisconsin.

Nov. 7, 1928.

Appeal from two orders of the Circuit Court for Waukesha County; C. M. Davison, Circuit Judge.

Proceeding for the incorporation of the Village of Chenequa. From two orders respectively striking out the objections of the Town of Merton to the sufficiency of the petition and incorporating the village, said town and certain others separately appeal. Affirmed.--[By Editorial Staff.]Jacobson & Malone and Lockney & Lowry, all of Waukesha, for appellants.

Quarles, Spence & Quarles and Lines, Spooner & Quarles, all of Milwaukee (J. V. Quarles and Louis Quarles, both of Milwaukee, of counsel), for respondents.

CROWNHART, J.

The trial court entered two orders in a proceeding for the incorporation of the village of Chenequa: One striking out the objections of the town of Merton to the sufficiency of the petition, and the other incorporating the village. From the first order the town of Merton appeals, and from the second the town of Merton, Mary Gibson, and Charles Gibson separately appeal. The defendants Gibson appeared at the hearing on the petition and filed objections to the incorporation. They resided and owned land within the area incorporated.

The errors assigned are: (1) The court erred in striking the objections of the town of Merton; (2) the court erred in finding that the petition for incorporation was signed by five taxpayers and residents in good faith of the territory sought to be incorporated; (3) the court erred in finding that the territory sought to be incorporated had the characteristics requisite to authorize incorporation under the Constitution of Wisconsin; (4) the court erred in finding that the area did not include lands which were not reasonably appurtenant and necessary for future growth; (5) the court erred in making the order incorporating the village; (6) the court erred in excluding evidence.

The Statutes involved are printed in the margin.¹

The first question raised on this appeal is the order of the court striking out the objection of the town of Merton. By reference to the Statutes it will be seen that there is no indication therein that any parties except those directly involved in the included territory of the proposed village have any interest in the incorporation of the village, and such was the holding of this court in a similar case. In re Village of Mosinee, 177 Wis. 74, 187 N. W. 688. In that case territory was proposed to be annexed to a village under substantially similar Statutes to those here involved. The appellants contend that there is a substantial difference between the facts and the law in Re Mosinee, supra, and in the instant case, and they cite In re Schumaker, 90 Wis. 488, 63 N. W. 1050, and State ex rel. Town of Holland v. Lammers, 113 Wis. 398, 86 N. W. 677, 89 N. W. 501, in which cases, under proposed organization of villages, the towns out of which the villages were carved were recognized as proper parties to the organization proceedings. While it is true that the towns were so recognized in those cases, the question here was not raised or passed upon in either case.

[1][2] The Legislature has power to make all laws not in contravention of the state or Federal Constitutions. Bushnell v. Beloit, 10 Wis. 195;Clark v. City of Janesville, 10 Wis. 155;Field v. People, 3 Ill. (2 Scam.) 79;Northwestern National Bank of Superior v. City of Superior, 103 Wis. 43, 45, 79 N. W. 54;Nitka v. Western Union Tel. Co., 149 Wis. 106, 110, 135 N. W. 492, Ann. Cas. 1913C, 863, 49 L. R. A. (N. S.) 337;Pauly v. Keebler, 175 Wis. 428, 439, 185 N. W. 554. Within such limits it may create municipal corporations, and alter them, at will. See State v. Auer, 221 N. W. 860, decided herewith. There can be little doubt that the legislation in question here is valid. The real question presented is whether the statutes were complied with in organizing the village of Chenequa.

[3] The statute provides for the filing of petition by five or more resident taxpayers within the proposed village limits for the incorporation of the village and for a public hearing on the same. The hearing was held, and the town of Merton filed objections to the petition, which were later stricken out by the court on the theory that only residents proposing to be incorporated had any interest in the proceeding, following in Re Mosinee, supra. From a legal standpoint that would seem to be correct. The citizens of the town outside of the proposed limits of the village could not vote on the matter. They could take no action that would be effective in any way. The legislative idea is that such citizens of the town, or the town as a municipality, have no interest in the matter. The public assets and liabilities are to be apportioned according to the assessed valuation of the respective properties of the village and town, so that the burdens of the town would be no greater after detaching the territory from the town into the proposed village than before. We think that the court properly followed the decision of this court in Re Mosinee, and that the objection of the town of Merton was properly stricken out.

[4][5][6][7] The second question raised is whether the petition for incorporation was signed by the requisite five taxpayers, residents in good faith, of the territory sought to be incorporated. The petition was signed by eight persons. One, it is admitted, was duly qualified. The others were formerly residents of the city of Milwaukee, residing therein in rented quarters or in hotels. Each of them owned a residence in the proposed village limits which was suitable for all year round residential purposes, and each lived within such proposed village limits in such residence the major portion of the year. Each had a place of business in the city of Milwaukee, and went to and fro more or less regularly during that time to attend to his business. Prior to the signing of the petition the petitioners considered the matter of changing their legal residence or domicile from the city of Milwaukee to the proposed village. They each concluded to do this. Each notified the income tax assessor of his purpose and each took out automobile licenses in Waukesha county, of which the proposed village is a part. Each testified on oath that he had in good faith changed his residence from the city of Milwaukee to his home in the proposed village. All were substantial business men of good repute. The territory embraced over 200 actual, bona fide residents, not including the petitioners. Since the filing of the petition the petitioners have voted in such territory and have continuously maintained their residences therein. It appears that the petitioners, in common with a large number of other people, had expensive residences in the proposed village; that they were not able to secure through the town proper police protection for their persons or their property; that they could not secure the necessary public conveniences; and that the growth of the city of Milwaukee made it desirable to establish their residences in this territory and to live there a large part of the time, if not all the time. They were within easy driving distance of Milwaukee, and one Mr. Hitz had permanently resided in this territory for some years, and had regularly gone to and from his home to his offices in Milwaukee. There is nothing suspicious about the circumstances and nothing to indicate that the petitioners were perpetrating a fraud upon anybody or could secure any undue advantage by such change of residence. Under such circumstances it is clear that the question of residence becomes largely a question of intention. One may have more than one home, but he can have only one domicile. Where he has more than one home each of which he occupies for a portion of a year, he is at liberty to determine in his own mind which place shall be his domicile, and, having made a determination, until he does some act which is inconsistent with the place of his domicile, such place will continue to be his domicile. The court held that the petition was sufficient, and we conclude that the evidence supports this finding. Will of Heymann, 190 Wis. 97, 208 N. W. 913, and cases there cited.

[8] The appellants contend that the statements that the petitioners made concerning their intent to make their domicile in the proposed village limits were self-serving and not admissible. In the Heymann Case, supra, we said:

“In what we have said we do not wish to be understood as denying the right of the deceased to freely change his residence at will and for no other reason than to escape taxation in Wisconsin, and the right to choose another residence implies the right to declare his choice even for the sole purpose of making evidence to prove what his choice was. ‘Such declarations are not self-serving in an improper sense, unless they are made with intent to...