State ex rel. City of Madison v. Walsh

• Decision Date: 15 June 1945
• Citation: 247 Wis. 317,19 N.W.2d 299
• Parties: STATE ex rel. CITY OF MADISON v. WALSH et al., Town Supervisors. SAME v. McCOY et al., Town Supervisors.
• Court: Wisconsin Supreme Court

247 Wis. 317

19 N.W.2d 299

STATE ex rel. CITY OF MADISON

v.WALSH et al., Town Supervisors.

SAME

v.McCOY et al., Town Supervisors.

Supreme Court of Wisconsin.

June 15, 1945.

Appeal from two judgments of the Circuit Court for Dane County; Edward J. Gehl, Judge presiding.

Proceedings by the State, on the relation of the City of Madison, for writs of mandamus directing E. J. Walsh and others, Supervisors of the Town of Westport, and Everett McCoy and others, Supervisors of the Town of Burke, respectively, to meet with relator's council and apportion the several communities' assets and liabilities in consequnce of the annexation of certain lands in such towns to the city. From judgments determining the validity of the annexation proceeding and granting the writs, defendants appeal.-[By Editorial Staff.]

Affirmed as to determination of validity of the annexation proceeding; reversed as to the mandamus proceedings, and cause remanded.

FOWLER, J., dissenting.Mandamus was sought by the plaintiff, January 12, 1945, requiring the town board members of the two defendant towns to meet with plaintiff's common council and proceed with the apportionment of the assets and liabilities of the several communities, which apportionment was consequent upon the annexation by the city of Madison of certain lands in the townships of Burke and Westport.

The brief of counsel for defendant towns states: ‘This is an appeal from a Judgment of the Circuit Court * * * granting the application of the Petitioner for a Peremptory Writ of Mandamus directing that the defendants attend such meetings of the apportionment board as may be had from time to time with reference to the purported annexation of certain lands. * * * The purpose of the apportionment board meetings was to apportion the assets and liabilities of the respective municipalities incidental to the pretended annexation.’ This is supplemented by stipulations providing that in the consideration of these cases, it may be treated as a finding of fact that the circulation of the petition for annexation was begun on May 10, 1944 ‘and concluded after the expiration of the forty-five day limit.’ And the brief concludes with a request for a determination of the validity or invalidity of the annexation proceedings.

The findings of fact are not inconsistent with the foregoing and the conclusions of law are:

‘1. That the said area * * * became legally annexed to the City of Madison pursuant to the ordinance adopted by the City of Madison on August 25, 1944.

‘2. That under the provisions of section 62.07(3) said ordinance became effective on November 24, 1944.

‘3. That said ordinance was not subject to and is not affected by the resolution adopted by the Town Board of the Town of Westport on November 22, 1944, providing for a referendum by the electors of the said town of Westport.’ (A similar ordinance seems to have been adopted by the Town of Burke.)

The remaining conclusions of law relate to the issuing of the permptory writ of mandamus and the allowance of $50 statutory costs.

Lowell T. Thronson and Randolph R. Conners, both of Madison, for appellants.

Harold E. Hanson, City Atty., of Madison, for respondent.

Wm. J. P. Aberg, of Madison, amicus curiae.

FAIRCHILD, Justice.

The three propositions presented on this appeal are:

1. The motion of the plaintiff that the appeal be dismissed because of failure to furnish a bond. This matter is effectively disposed of by the statute itself, sec. 274.26, Stats., which provides that a municipality in taking an appeal need not furnish a bond. The parties the plaintiff sought to coerce by mandamus are town officers and had they any authority to act it would be as officers of the towns. The motion to dismiss is denied.

2. The question is raised as to the propriety of issuing the writ of mandamus. We are of the opinion that mandamus does not lie. The towns as parties to these proceedings may default if they choose in the matter of attending the apportionment meetings. Mandamus cannot issue unless an officer has failed to perform a duty imposed upon him by law. La Forge v. State Board of Health, 1941, 237 Wis. 597, 296 N.W. 93;Bjordal v. Town Board of Delavan, 1939, 230 Wis. 543, 284 N.W. 534. If there is any duty on the part of the town boards to participate in such meetings, it must be derived from sec. 66.03(5), Stats. That section reads:

‘66.03(5) Apportionment board. The boards or councils of the municipalities, or committees, thereof selected for that purpose, acting together, shall constitute an apportionment board. When any municipality is dissolved by reason of all of its territory being so transferred the board or council thereof existing at the time of such dissolution shall for the purpose of this section, continue to exist as the board or council of such municipality.

‘(6) Meeting. The board or council of the municipality to which the territory is transferred shall fix a time and place for meeting and cause a written notice thereof to be given the clerk of the municipality from which such territory is taken at least five days prior to the date of the meeting. The apportionment may be made only by a majority of the members from each municipality who attend, and in case of committees, the action must be affirmed by the board or council so represented.’

The statute does not provide that the members of the town boards must attend. Nor does it specify the number of members of the board who must attend. The provision for an apportionment by a majority of those who attend implies that if a town chooses not to participate, a majority of those who do, shall have the authority to make the apportionment. It is true that the statute says the boards ‘acting together’ shall so act but this has reference only to the method of proceeding if the municipalities choose to participate. There is nothing in the statute to prevent a municipality from defaulting, abdicating its right to participate or to allow the other municipality to act alone. Under such circumstances, mandamus is not the proper remedy.

3. The next question is as to the validity of the petition for annexation.

The city of Madison insists that the towns are precluded from raising the question of the validity of the petition in the annexation proceedings by virtue of sec. 62.07(3), Stats., which provides that the validity of the proceedings shall not be collaterally attacked, nor in any manner called in question in any court unless the proceedings therefor be commenced before the expiration of ninety days from the passage of the ordinance of annexation. The law requires the circulation and filing of a valid petition to give the common council jurisdiction in an annexation matter. The towns are entitled at any time to attack the proceedings by a showing that the original petition filed with the council was invalid. Town of Wilson v. Sheboygan, 1939, 230 Wis. 483, 283 N.W. 312;State ex rel. Thompson v. Eggen, 1931, 206 Wis. 651, 238 N.W. 404,240 N.W. 839. Hence the question of whether the petition was valid in its inception is properly raised here, as it was considered and decided below.

The growth of communities causing the necessity and convenience of changing boundaries of territory became apparent to the legislature. That department of our government recognizing the probability that from time to time such alterations would be suggested by interested parties has provided in the way of regulation, methods for zoning within territory and for detaching from present limits certain property and annexing areas...