Town of Beloit v. City of Beloit

• Decision Date: 06 February 1967
• Citation: 155 N.W.2d 633,37 Wis.2d 637
• Parties: In the Matter of the Petition of the City of Beloit for a determination that annexation to said City of territory described in an annexation ordinance enacted by said City on
• Court: Wisconsin Supreme Court

Page 633

155 N.W.2d 633

37 Wis.2d 637

In the Matter of the Petition of the City of Beloit for a determination that annexation to said City of territory described in an annexation ordinance enacted by said City on February 6, 1967, is in the public interest TOWN OF BELOIT, Town of Rock, and Town of Turtle, Appellants, v. CITY OF BELOIT, Respondent.

Supreme Court of Wisconsin.

Jan. 30, 1968.

Brady, Tyrrell, Cotter & Cutler, Richard W. Cutler and Samuel J. Recht, Milwaukee, Garrigan, Keithley, O'Neal, Dobson & Elliott, Beloit, Campbell, Brennan, Steil & Ryan, Janeville Caskey & Collins, Beloit, of counsel, for appellants.

Samuel B. Loizzo, City Atty., Beloit, Orr, Isaksen, Werner, Lathrop & Heaney, Madison, for respondent.

HALLOWS, Chief Justice.

The facts are simple and undisputed. On February 6, 1967, the city council of the City of Beloit enacted an ordinance under sec. 66.021, Stats., for the annexation to the city of certain lands situated in the Towns of Beloit, Rock, Turtle, and La Prairie. Since the area annexed was in excess of one square mile, the city was required by sec. 66.021(11)(b) to immediately petition the circuit court for a determination that the annexation was in the public interest. The question on appeal is whether this requirement is constitutional.

In 1957 the legislature enacted revised statutes relating to annexations. In sec. 66.021 it provided that territory contiguous to a city or village could be annexed either by (a) Direct annexation, or (b) referendum. The details of these methods were set forth. In 1959 by sec. 66.021(11)(a) additional requirements were provided for annexations in a county having a population of over 50,000. The state director of the planning function in the department of resource development ¹ must be notified of the proposed annexation and within 20 days the director may give his opinion that the annexation is against public interest. His reasons therefor must be given within the next 10 days. Public interest for this purpose is defined in paragraph (c) ² in terms of governmental services to be supplied, the shape of the proposed annexation, and the homogeneity of the territory. The annexing municipality is required to review this advice before taking final action on the annexation.

In 1959, sec. 66.021(11)(b), Stats., was also added to sec. 66.021 and requires 'Whenever a village or city adopts an ordinance annexing an area of one square mile or more, it shall immediately petition the circuit court of the county in which the village or city is situated for a determination that the annexation is in the public interest and the ordinance shall not be in effect until the court so determines.' This section also provides the court shall receive an advisory report from the state director of regional planning on whether or not the annexation is in the public interest as defined in paragraph (c).

The trial court in holding sec. 66.021(11)(b) was unconstitutional as an unauthorized delegation of legislative power to the judiciary, relied on Scharping v. Johnson (1966), 32 Wis.2d 383, 145 N.W.2d 691, and In re Incorporation of Village of North Milwaukee (1896), 93 Wis. 616, 67 N.W. 1033. The trial court was of the opinion the delegation was clearly unconstitutional because the circuit court was granted an unlimited power to determine what constituted public interest and this power was not limited by the definition of public interest in paragraph (c), nor was such a term a codification of or to be equated with the 'rule of reason' of juridical origin.

We reach the same conclusion as did the trial court but with less alacrity and confidence. But we hasten to add that in this day of restless technical and social change this court is alert to the necessity of guarding against a well-meaning fusion of judicial and legislative power. We start with the basic principles of constitutional law and statutory construction: (1) That the statute must be presumed to be valid and constitutional, 2 Sutherland, Statutory Construction, 3rd ed., pp. 326, 327, sec. 4509; ABC Auto Sales, Inc. v. Marcus (1949), 255 Wis. 325, 38 N.W.2d 708; White House Milk Co. v. Reynolds (1960), 12 Wis.2d 143, 106 N.W.2d 441; and (2) if a statute is open to more than one reasonable construction, the construction which will accomplish the legislative purpose and avoid unconstitutionality must be adopted. Attorney General v. City of Eau Claire (1875), 37 Wis. 400; State ex rel. Harvey v. Morgan (1966), 30 Wis.2d 1, 139 N.W.2d 585; Gelencser v. Industrial Comm. (1966), 31 Wis.2d 62, 141 N.W.2d 898. Of course, the court cannot give a construction which is unreasonable or overlook language in order to sustain legislation, but likewise the construction need not be the most natural or obvious. See State ex rel. Reynolds v. Sande (1931), 205 Wis. 495, 238 N.W. 504.

But even considering the construction contended for by the Towns we are unable to find that the section only prescribes the conditions necessary for an annexation and all that is delegated to the courts is the power to determine whether those conditions exist. Many years ago in In re Incorporation of Village of North Milwaukee, supra, 93 Wis. at p. 624, 67 N.W. at p. 1036, we held, 'The question as to whether incorporation is for the best interest of the community in any case is emphatically a question of public policy and statecraft, not in any sense a judicial question; and in attempting to submit that question to the decision of the circuit court the legislature has undoubtedly done that which the constitution forbids.' While the case involved incorporation of a village, the principle is fundamental and has been followed both in this state and elsewhere. ³ Its latest recognition was in Scharping v. Johnson, supra, also an incorporation case, and we now apply the principle to annexation cases.

There is no question that if we consider public interest as an unrestricted term or concept, as did the trial court, the determination of what political and economic expediency constitute public interest is a legislative function. What is 'desirable' or 'advisable' or 'ought to be' is a question of policy, not a question of fact. What is 'necessary' or what is 'in the best interest' is not a fact and its determination by the judiciary is an exercise of legislative power when each involves political considerations and reasons why there should or should not be an annexation. This is the general and universal rule which sharply draws the differentiating line between legislative power and judicial power and by which the validity of the delegation of functions to the judiciary by the legislature is determined. State ex rel. Klise v. Town of Riverdale (1953), 244 Iowa 423, 57 N.W.2d 63; City of Auburndale v. Adams Packing Association (Fla.1965), 171 So.2d 161; In re Ruland v. City of Augusta (1926), 120 Kan. 42, 242 P. 456; City of St. Joseph v. Hankinson (Mo.1958), 312 S.W.2d 4; Annot. (1930), 69 A.L.R. 266, 267, 268.

The appellants correctly argue the broad definition of public interest is not applicable in this case because the statute confines public interest for the purpose of this type of annexation to three factors: Government service, shape and homogeneity. It is further argued these three factors have often been used by the courts under the rule of reason to review annexations and in effect all the section does is to codify this concept and make its application a mandatory part of the annexation process. This is a two-phased argument. We think the determination of public interest is restricted to the consideration of the factors enumerated and both the state director of regionale planning and the circuit court are so limited. The legislative history of the section would indicate the concept of public interest is limited and the legislature intended to avoid the North Milwaukee Case in providing for a court's determination of public interest on designated factors. The purpose of subsection (11) is stated in notes which were a part of Bill 226, A, ⁴ creating the subsection. The belief is therein expressed that the advisory report of the state administrative officer would supply a sufficient foundation to avoid the proscription of the North Milwaukee Case. Perhaps the legislature intended to leave only a question of the existence of certain facts for the court to decide without having to consider political factors, but the question is, does the statute as enacted avoid the North Milwaukee Case?

We pointed out in Nash v. Fries (1906), 129 Wis. 120, 108 N.W. 210, relied on by the appellants, there was a distinction between the function of deciding a question of legislative policy and the secertainment of existence of certain facts and conditions upon which the legislature had decided and declared the policy. In that case the court was considering the phrase 'in its discretion,' which was used in a statute providing the procedure for the organization of a town. The court took the view of favoring constitutionality and found the only discretion in the court was as a trier of facts to determine whether the conditions for organization required by the statute in fact existed and the section did not compel the court to pass upon the advisability of the incorporation after the facts had been so determined. A similar view was taken in City of St. Joseph v. Hankinson, supra.

However, we have difficulty applying this reasoning to sec. 66.021, Stats. This section does not require the ascertainment of facts as the word 'fact' is normally understood but requires the determination of public interest. This narrow concept of public interest still leaves the court with too much discretion to determine whether such public interest requires the annexation. Nor is there any standard provided by which to determine which governmental services are 'better supplied' or what the 'shape' of the annexed territory should be. If the court were to determine these...