Mueller v. City of Milwaukee

• Decision Date: 06 May 1949
• Citation: Mueller v. City of Milwaukee, 254 Wis. 625, 37 N.W.2d 464 (Wis. 1949)
• Parties: MUELLER et al. v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

254 Wis. 625

37 N.W.2d 464

MUELLER et al.

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

May 6, 1949.

Appeal from a judgment of the Circuit Court for Milwaukee County; August E. Braun, Judge.

Reversed.

This is an appeal from a judgment, dated January 21, 1949, holding that the ordinance adopted by the common council of the city of Milwaukee on June 23, 1947, which purported to annex to the city of Milwaukee the territory described therein and located in the town of Milwaukee, Wisconsin, is invalid, void, and of no legal force and effect; and awarding plaintiffs $100 costs, and disbursements in the sum of $48.22. Action was commenced on September 11, 1947.

The plaintiffs are electors and taxpayers residing within that portion of the town of Milwaukee, Milwaukee county, included in the territory sought to be annexed in the proceedings involved in this action. The defendant, city of Milwaukee, is a city of the first class organized and existing under and by virtue of a special charter. Other material facts will be stated in the opinion.

FAIRCHILD and MARTIN, JJ., dissenting.

Walter J. Mattison, City Atty., and Richard F. Maruszewski, Asst. City Atty., both of Milwaukee, for appellant.

Richard J. McGinn and Neal J. Gleason, both of Milwaukee (Albert B. Houghton, of Milwaukee, of counsel), for respondent.

BROADFOOT, Justice.

The question involved on appeal are: (1) Whether the officers of Milwaukee county exceeded their authority in signing the petition for an annexation to the city of Milwaukee of a certain territory in the town of Milwaukee, Wisconsin; and (2) whether the city of Milwaukee was required to post and publish notices of the circulation of petitions for annexing territory as is provided by sec. 62.07(1)(a), Stats. In order to determine whether the ordinance annexing a portion of the town of Milwaukee to the city of Milwaukee is valid, it is necessary to review the relevant facts.

On March 31, 1947, the county board of Milwaukee county adopted the following resolution:

‘(Item 2) Communications from the assistant city attorney attaching hereto a certified copy of a resolution adopted by the Common Council, City of Milwaukee, requesting the County Board of Milwaukee County to take the necessary action to authorize the proper county officials to sign petitions for the annexation to the City of Milwaukee certain described lands along North Green Bay Avenue, part of Lincoln Park, which lands are being considered as a housing site for the G. I.'s by the County of Milwaukee and described as follows:

‘All that part of Lincoln Park presently owned by Milwaukee County which lies west of a line described as follows:

‘Commencing at the Northeast (NE) corner of the Southeast (SE) 1/4 of Section 31, Town 8 North, Range 22 East; thence south along the East line of said 1/4 Section to the north bank of the Milwaukee River, thence along the right or westerly bank of the Milwaukee River to a point 454.87 feet east of the west line of the Northwest 1/4 of Section 5, Town 7 North, Range 22 East, thence south along a line 454.87 feet east of and parallel to the west line of said Northwest 1/4 of Section 5 to the center line of West Glendale Avenue, ‘now, therefore, be it

‘Resolved, That the proper officers of the County of Milwaukee be and the same are hereby authorized to sign the petitions on the part of Milwaukee County for the annexation of the lands described herein.’

On April 14, 1947, the chairman of the county board and the county clerk of Milwaukee county signed, pursuant to the above resolution, a petition on behalf of the county of Milwaukee as owner of approximately seventy-two acres of land sought to be annexed. It was stipulated that the lands described in the county board resolution were the same as the lands described in the exhibit of the petition setting forth a description by metes and bounds of the lands that the county signed for, as owners thereof.

The area in question was annexed pursuant to the following provision of the Wisconsin Statutes 1898: ‘Annexation and detachment of territory. Section 926-2. Territory lying adjacent to any city so incorporated may be annexed to such city in the manner provided by sections 925-17 to 925-21 inclusive; provided, that the petition required by section 925-18 shall be sufficient for the purposes therein mentioned if signed by one-half of the resident electors and the owners of one-half of the real estate within the limits of the territory proposed to be annexed. Territory may also be detached from any such city in the manner prescribed by section 925-21a.’

The owners of 141.13 acres signed the said petition, of which 72 acres are owned by Milwaukee county and are in Lincoln Park, and 69.13 acres are owned by a large number of private individuals. Pursuant to the above statute, 282.26 acres could be annexed, and the city annexed a total of 259.57 acres.

The petition was filed in the office of the city clerk of the city of Milwaukee and on June 23, 1947, the common council of the city of Milwaukee by ordinance annexed the entire tract of land described in said petition to the city of Milwaukee. The ordinance was published by the city of Milwaukee on July 1, 1947, and by its terms became effective ninety days thereafter. The present action was commenced within the period prescribed by law for questioning the validity of said proceedings.

The evidence shows that the Milwaukee county board by its resolution of March 31, 1947, authorized its proper officers to sign a petition for the annexation of the 72 acres of land described therein. The officers did not sign the petition on behalf of the county of Milwaukee as the owner of any other lands within the boundary lines of the area proposed to be annexed. They limited their act to that authorized by the resolution. We hold that the officers did not exceed their authority.

The cases cited by plaintiffs all relate to county officers acting without authorization or beyond their authority, and are therefore distinguishable.

The city annexed 259.57 acres. This was proper because under the statutes a proper signing by the owners of fifty per cent of the area proposed for annexation automatically makes possible the annexation of an additional tract of land that is as large as that owned by the petitioners. There is nothing in the statute regarding annexation of lands to a city that treats county-owned lands differently from privately-owned lands. The owners of lands who refused to sign the petition and opposed annexation of this property cannot prevent this property from being annexed if the signatures of the owners of one-half of the real estate in the territory proposed to be annexed, as provided by sec. 926-2, have been obtained. Sec. 926-2 does not make an exception of county-owned lands. The county board by its resolution directed and authorized the annexation of 72 acres, and the proper officers signed the petition for annexation of these lands. These signatures fully complied with the county board's direction and authorization and are as effective as the signatures of private owners. The fact that other parcels of county-owned land, in addition to the 72 acres, were included in the annexation does not make the ordinance invalid. The provisions of sec. 926-2 requiring that owners of one-half of the real estate within the limits of the territory proposed to be annexed sign the petition were complied with.

The next question to be considered is whether the city of Milwaukee, in annexing territory, must comply with the provisions of sec. 62.07(1)(a), Stats. which reads as follows: ‘A petition therefor shall be presented to the council (1) signed by a majority of the electors of such adjacent territory and by the owners of one-third of the taxable property thereof according to the last tax roll, or (2) if no electors reside therein by the owners of one-half of said taxable property, or (3) by a majority of the electors and the owners of one-half of the real estate in assessed value; provided, that no petition for annexation shall be valid unless at least thirty days and not more than forty-five days before any such petition is caused to be circulated, a notice shall be posted in at least eight public places in the municipality in which the adjacent territory is located, and a copy of such notice published in a newspaper of general circulation within the county in which said adjacent territory is located, at least fifteen days prior to the time when such petition is caused to be circulated, such notice to set forth that an annexation petition is to be circulated, and including an accurate description of the territory involved.’

The city of Milwaukee, in annexing the territory in question, did not comply with the provisions of that section of the general charter law with regard to the posting and publishing of notices. The city claims it did not have to do so because it had not adopted that part of the general charter law by ordinance.

Prior to the Revised Statutes of 1898, the statute providing for the annexation of territory by special charter cities was repealed. Consequently at that time there was no way in which a special charter city could annex territory. Sec. 926-2, Rev.Stats.1898, provided that special charter cities could annex territory in the same manner as that provided in the general charter law, which was contained in secs. 925-17 to 925-21, inclusive.

The plaintiffs contend that the law as to the annexation of territory by the city of Milwaukee was changed by the enactment of ch. 242, Laws of 1921. The pertinent excerpts of that chapter are as follows:

‘An Act to consolidate, renumber and revise chapters 64bb, 64c and part of 64cc of the statutes, relating to cities; to amend, repeal, consolidate, revise and arrange in appropriate sequence the sections, subsections and provisions of said chapters; to assemble in said chapters as consolidated pertinent provisions from other chapters of ...