Incorporation of Village of Elm Grove, In re

• Decision Date: 08 June 1954
• Citation: Incorporation of Village of Elm Grove, In re, 64 N.W.2d 874, 267 Wis. 157 (Wis. 1954)
• Parties: In re INCORPORATION OF VILLAGE OF ELM GROVE. TOWN OF BROOKFIELD, v. BEISBER et al.
• Court: Wisconsin Supreme Court

Page 874

64 N.W.2d 874

267 Wis. 157

In re INCORPORATION OF VILLAGE OF ELM GROVE TOWN OF BROOKFIELD, v.BEISBER et al.

Supreme Court of Wisconsin.

June 8, 1954.

In January, 1953, certain parties filed in the circuit court for Waukesha county an application for the incorporation of a part of the town of Brookfield as the village of Elm Grove.The town of Brookfield appeared in opposition and showed to the court that the notice required by sec. 61.05, Stats. had not been printed as the statute directs.Upon motion of the town the trial court, February 11, 1953, ordered the proceeding dismissed for failure of the applicants to comply with the provisions of such statute.No appeal was taken.The present petition is for the incorporation of substantially the same territory as the village of Elm Grove.It was filed with the circuit courtMay 1, 1953.Statutory notice of this application was given and again the town of Brookfield appeared in opposition and moved for summary judgment dismissing the application on the ground that the proceeding is premature and without merit.On July 27, 1953, the trial court denied the town's motion and part of the present appeal is from such order of denial.Thereafter the hearing in the circuit court for which the statute provides was had and at its conclusion, and on September 30, 1953, that court found that statutory requirements had been observed and that the territory sought to be incorporated had all the characteristics of a village, wherefore the court granted the petition and ordered such territory incorporated as the village of Elm Grove, subject to the favorable vote of the territory's electors.The town's appeal is from this order also.The petitioners are the respondents.

Further facts will appear in the opinion.

Clayton A. Cramer, Waukesha, for appellant.

Dineen, Gleason, Shaughnessy & Dineen, Milwaukee, for respondents.

BROWN, Justice.

The record before us shows that the town's motion to dismiss the January proceeding alleged generally that the application for incorporation was without merit but was specific only in its allegation that the statute providing for the printing of notices had not been followed.The trial court's order of January 16, 1953, stated:

'* * * The Court, therefore, finds that the failure to comply with the said section of the statutes, publishing the notice of incorporation in the Elm Leaves, is jurisdictional; that all the proceedings are void; and the petition is dismissed. * * *'

Search of the record reveals no matters considered by the court other than the defective notice and its dismissal of the application for incorporation was for that cause alone.There was no appeal and it must stand as a verity now that the first proceeding was dismissed for failure of the applicant to comply with statutory procedural requirements and not for any lack of merit in the territory, or in the disposition of its inhabitants, for its incorporation as a village.

The first question to be decided is whether an incorporation so begun and so ended prevents the court from entertaining a new proceeding for one year.Appellant's motion for summary judgment rests on the proposition that it does, relying on sec. 61.07(3), Stats.The entire section recites:

'Hearing; costs.(1) If prior to the date set for a hearing upon such application there is filed with the court a petition protesting against the incorporation of such village, the court shall deny the application, after satisfying itself that such petition has been signed by a majority of the freeholders or the owners of more than one-half of the property by assessed value in the territory proposed to be incorporated; providing, however, that this section shall not apply to counties having a population of 250,000 or over.

'(2) If such a petition is not filed, the court shall hear all parties interested for or against such application who shall seasonably appear; may in its discretion adjourn such hearing from time to time, direct a resurvey to be made or another census taken by whomsoever it shall appoint, and refer any question for examination and report thereon.Any town containing territory of the proposed new village shall upon application be a party and entitled to be heard on any matter pertaining to the right of such proposed territory to incorporate as a village.

'(3) If the court shall deny such application, it may, in its discretion, by order, compel the applicants to pay such disbursements or any part thereof as shall have been incurred by the parties opposing the same.No petition for the incorporation of substantially the same territory shall be entertained for one year following the date of the denial of such application or the date of any election at which incorporation was rejected by the electors.'

The town's contention that the present petition is premature depends on the last sentence of the section just quoted.In our interpretation of the statute the denial referred to, with its delaying result, is a denial of incorporation by the court upon the proceedings referred to in subsection (1) of such section.That is, the section, read as a whole, provides that if it is shown to the court that a majority of freeholders, or owners of a majority of property value, by signed petition oppose the incorporation, the court must deny the incorporation forthwith just as though the effort to incorporate had advanced to the election stage and was beaten there.This provision looks to the merits of the application and is not concerned with the procedural conditions which are precedent to a hearing on the merits or to submission of the question to the electors.

Under appellant's theory that a dismissal or denial of an incorporation petition for procedural defects postpones for one year all other attempts to incorporate, it would follow that a summary judgment of dismissal now would occasion delay for a year from the date of such dismissal.Then, if an individual or group, whether sincerely desiring village status or not, should file a new petition within that year it, too, must be dismissed because premature and such dismissal would automatically invoke an additional year within which there could be no effective incorporation proceedings, and so on, forever.The same effect of perpetual postponement would result from a succession of petitions which by design or otherwise, failed to comply with the statute in respect to survey, notice, number of persons signing the petition, or other preliminary requirements of secs. 61.01-61.06, Stats. inclusive.We cannot impute to the legislature any purpose that such repeated defective proceedings could stall incorporation in perpetuity but that, clearly, is the result of appellant's construction of the statute.Such construction is not necessary and we reject it, holding that the denial of the application which operates to delay a new proceeding for a year is a denial because a majority of freeholders or the owners of more than one-half of the property value have signed and filed a protesting petition, sec. 61.07(1), or because on the hearing, sec. 61.07(2), the court finds that the territory to be incorporated does...