Town of Blooming Grove v. City of Madison

• Decision Date: 01 July 1948
• Citation: Town of Blooming Grove v. City of Madison, 253 Wis. 215, 33 N.W.2d 312 (Wis. 1948)
• Parties: TOWN OF BLOOMING GROVE v. CITY OF MADISON.
• Court: Wisconsin Supreme Court

253 Wis. 215

33 N.W.2d 312

TOWN OF BLOOMING GROVE

v.CITY OF MADISON.

Supreme Court of Wisconsin.

July 1, 1948.

Appeal from a judgment of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Affirmed.

The Town of Blooming Grove, Dane County, Wisconsin, a municipal corporation, plaintiff and respondent, brings this action against the city of Madison, Dane County, Wisconsin, a municipal corporation, defendant and appellant, to have declared null and void an ordinance passed by the city council of the city of Madison annexing certain territory in the town of Blooming Grove to the city of Madison. From a judgment declaring the ordinance null and void the city of Madison appeals. The facts will be stated in the opinion. Harold E. Hanson, City Atty., Alton S. Heassler, Asst. City Atty., and Francis Lamb, Sp. Counsel, all of Madison, for appellant.

Harris & Brandt, of Madison, for respondent.

PER CURIAM.

The question presented is whether the requirements of pars. (a) and (b) of sub. (1) of sec. 62.07, Stats. were complied with at the time the city council of the city of Madison adopted an ordinance annexing certain territory from the town of Blooming Grove to the city of Madison. Appellant demurred to the complaint which alleged that on June 7, 1947, following proper posting and publication of notices, annexation petitions were circulated throughout the area, and were signed by five hundred fifty-five electors out of a total of eight hundred seventy-three. There is no allegation in the complaint that the petitioners were the owners of the required amount of taxable property in the area. The petitions were filed with the clerk of the city of Madison June 25, 1947. On June 27, 1947, an ordinance was introduced at a regular meeting of the city council annexing the lands to the city of Madison, which ordinance was published in the official city paper for four consecutive weeks, the last publication having been made July 23, 1947. July 23 and July 24 there were filed with the city clerk several petitions containing the names of one hundred fifty-seven persons whose signatures appeared on the annexing petitions, requesting their signatures be stricken and withdrawn from the original petitions. At a regular meeting of the city council the petitions for withdrawal of signatures were received and placed on file, which was equivalent to refusing to permit the withdrawal of the names, and by unanimous vote the ordinance annexing the lands to the city of Madison was adopted. The ordinance was duly published and placed on file in the city clerk's office as required by law.

The material part of the statute involved follows:

‘62.07(1) Annexation Procedure. Territory adjacent to any city may be annexed to such city in the manner following:

‘(a) A petition therefor shall be presented to the council (1) signed by a majority of the electors in 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; * * *.

‘(b) An ordinance annexing such territory to the ward or wards named therein shall be introduced at a regular meeting of the council after the filing of the petition, be published once each week for four successive weeks in the official paper and thereafter be adopted at a regular meeting by three-fourths of all the members of the council.'

It is plain to see that the minimum number of signatures required is four hundred thirty-seven. If the withdrawal of the one hundred fifty-seven signatures from the five hundred fifty-five signatures on the original petition is effective this would leave only three hundred ninety-eight signatures on the petitions on file, which was less than the required number at the time the ordinance was passed.

Appellant contends the presentation of the annexation petition to the city council, the introduction of an annexation ordinance and commencement of publication of the ordinance gave the city jurisdiction of the petition in the annexation proceedings; that no signatures could thereafter be added to or subtracted from the petition, while respondent claims a person petitioning a public body can withdraw his name from the petition at any time prior to the time of final action upon the petition, and that final action here means the adoption of an ordinance by the city council.

Courts in the various states are not in accord as to when the right to withdraw a signature from a petition terminates. There are courts holding that the right expires at the time of filing the petition, others when the sufficiency of the petition has been determined, some that it expires when jurisdiction attaches, and still others that the right continues until final action is taken upon the petition. See Sim v. Rosholt, 16 N.D. 77, 112 N.W. 50, 11 L.R.A.,N.S., 372; 126 A.L.R. 1032. There is no decision of this court on the precise point under consideration.

The legislature has provided a statutory plan or procedure for the annexation of territory to municipal units. The right to live in a particular municipal unit is an important right and should be protected by all the safeguards that the law provides. People purchase or construct homes and places of business in particular towns, cities and villages because of the advantages which they believe are offered. Municipal improvements are made and indebterness is incurred in accordance with the demands of the people living within the boundary lines of the municipal unit. When property is detached therefrom and attached to an adjoining unit it can well leave a unit of government without sufficient valuation to finance its operations.

Neither appellant nor respondent questions the right of a petitioner to withdraw his name from the petition some time after he has signed it, the disagreement being as to when this right terminates. Both parties rely on the cases of La Londe v. Board of Supervisors of Barron County and Others, 1891, 80 Wis. 380, 49 N.W. 960, and State ex rel. Hawley v. Board of Supervisors of Polk County and Another, 1894, 88 Wis. 355, 60 N.W. 266. In the La Londe case a petition was filed with the board of supervisors to change the county seat. Thereafter certain signers on the petition withdrew their names, and on the question as to whether or not they could withdraw their names after the petition was filed and before...