Town of Blooming Grove v. City of Madison
| Decision Date | 03 June 1958 |
| Citation | 4 Wis.2d 447,90 N.W.2d 573 |
| Parties | TOWN OF BLOOMING GROVE, a Municipal Corporation, Respondent, v. CITY OF MADISON, a Municipal Corporation, Appellant. |
| Court | Wisconsin Supreme Court |
Harold E. Hanson, City Atty., Madison, Leon E. Isaksen, Sp. Counsel for city, Madison, Thomas Orr, Isaksen, Werner & Lathrop, Madison, of counsel, for appellant.
Earl I. Cooper, Madison, William J. P. Aberg and Paul C. Gartzke, Madison, of counsel, for respondent.
1. Summary judgment properly denied. The order denying the city's motion for summary judgment must be affirmed, because the pleadings and affidavits disclose the existence of a material issue of fact, i. e., whether or not the petition for annexation bore the required number of signatures of electors and property owners at the time the annexation ordinance was adopted.
It is essential to the validity of an annexation that the petition bear the required number of signatures at the time the ordinance is adopted. Town of Greenfield v. City of Milwaukee, 272 Wis. 610, 613, 76 N.W.2d 320; Town of Brookfield v. City of Brookfield, 274 Wis. 638, 643, 80 N.W.2d 800. While we said in the case first cited that insufficiency of signatures at that time, as distinguished from insufficiency on the date of the filing of the petition, is not one of those 'jurisdictional' defects which can be questioned more than ninety days after passage of the ordinance (Town of Greenfield v. City of Milwaukee, 272 Wis. 610, 613, 76 N.W.2d 320), the defect is nevertheless fatal to the ordinance if challenged within the ninety-day period prescribed by sec. 62.07(3), Stats. In the present case the action was commenced within the ninety-day period, and the original complaint served and filed within that period directly alleges that the petition for annexation was not signed by the number of electors and property owners required by sec. 62.07, at the time of passage of the ordinance.
On the motion for summary judgment, that allegation of the complaint was supported by affidavits. It follows that the city's motion for summary judgment was properly denied, since facts are asserted by a timely-filed pleading and by affidavit which, if proved on trial, will establish the invalidity of the annexation ordinance.
2. City council's recital of fact not conclusive. The city urges that the existence of sufficient signatures on the petition is not open to challenge by the town or consideration by the court, because the city's common council determined that there were a sufficient number of signatures, and such determination is conclusive.
The annexation ordinance was prefaced with the following recital:
'Whereas, a petition has been made and presented in writing to the Common Council of the City of Madison signed by a majority of the electors in the territory hereinafter described and by the owners of more than one-half of the real estate in assessed valuation, according to the 1953 tax Roll of the Town of Blooming Grove; and by the owners of more than one-half of the area hereinafter described;'.
The record does not disclose what if any evidence this recital was based upon. It will be observed that the recital does not specify whether it refers to the date when the petition was filed or the date five months later when the ordinance was passed, although, as pointed out above, there must be a sufficient number of signatures on each date. Hence the quoted recital could hardly be conclusive on any theory, with respect to either date.
Even if the ordinance recital were to be construed as referring to the date of adoption of the ordinance, it would not foreclose the court from inquiring into the facts. We cannot accept the city's argument that the council's finding is conclusive on the courts if not shown to be fraudulent, arbitrary or capricious.
The city cites authorities to the point that findings of various administrative tribunals and municipal governing bodies are conclusive if not arbitrary, capricious or without support in evidence, and argues that the same principle applies to determinations of a city council with respect to the facts requisite to validity of an annexation, and that therefore the court may not try the facts de novo. We consider, however, that the rule is otherwise with respect to annexations.
Fundamentally the question is one of statutory construction, since the legislature has enacted comprehensive legislation on the subject of annexation, and its power in the field is plenary, unembarrassed by constitutional rights of its municipal subdivisions. See Douglas County v. Industrial Comm., 275 Wis. 309, 314, 81 N.W.2d 807; Village of Brown Deer v. City of Milwaukee, 2 Wis.2d 441, 462, 86 N.W.2d 487. We find nothing in the applicable statute to suggest that the city council's determination relative to compliance with the specific statutory prerequisites for annexation is to be conclusive, while on the other hand there are substantial indications to the contrary.
In sec. 62.07, Stats.1953 the legislature has set forth a number of specific steps that must be taken and requirements that must be met before the city council may properly annex territory. They are in the nature of safeguards against hasty, arbitrary or minority action, and they exist for the protection of the residents and owners of property in the territory to be annexed and of the town in which such territory lies. This court has said, '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.' Town of Blooming Grove v. City of Madison, 253 Wis. 215, 218, 33 N.W.2d 312, 314. The legislature has specifically declared that in proceedings whereby territory is detached from any town, the town is an interested party and the town board may institute and maintain an action to test the validity of the proceeding. Sec. 66.029, Stats. Thus the statute 'grants to towns the right to compel and enforce a strict compliance with the required procedure.' Town of Madison v. City of Madison, 269 Wis. 609, 615, 70 N.W.2d 249, 253.
In this setting we do not think it could have been the legislative intent to entrust conclusive determination of the existence of the statutory safeguards to the governing body of one of the interested parties. The city is an interested party in any annexation, and the disposition if not the function of its common council is partisan--to do that which it deems best in the interests of the city, rather than to hold the scales even as between the city on the one hand and the town and its residents on the other. It is unlikely that common councils in general have either the specialized expertness or the disinterested facilities for fact-finding which have led to the rule that the bona fide findings of administrative tribunals are conclusive if supported by evidence.
For many years, in many cases, the courts have treated the fact of compliance with the specific requirements of sec. 62.07 as matter for judicial determination de novo, without intimating that the city council's own determination on the subject is conclusive. See for example, Lutien v. City of Kewaunee, 143 Wis. 242, 126 N.W. 662, 127 N.W. 942; Zweifel v. City of Milwaukee, 188 Wis. 358, 206 N.W. 215; DeBauche v. City of Green Bay, 227 Wis. 148, 277 N.W. 147; State ex rel. City of Madison v. Walsh, 247 Wis. 317, 19 N.W.2d 299; Town of Greenfield v. City of Milwaukee, 272 Wis. 388, 75 N.W.2d 434; and Town of Greenfield v. City of Milwaukee, 273 Wis. 484, 78 N.W.2d 909. While it does not appear that the particular contention now under consideration was advanced in those cases or that the council made specific recital of facts, and some of them involved only the socalled jurisdictional defects, the cases nevertheless disclose a consistent practice of treating questions of compliance with the statutory prerequisites to annexation as subject to unrestricted judicial review.
The legislature has acquiesced in this judicial practice, and has manifested no thought that it is contrary to the statutory plan. In 1957 a comprehensive amendment of the annexation law was adopted. (Ch. 676, Laws 1957). Among other amendments, the provision of former sec. 62.07(3), limiting the time within which the validity of annexations may be challenged, was renumbered 66.021(10) and amended to read:
...
To continue reading
Request your trial
-
Town of Campbell v. City of La Crosse, No. 02-2541
...amendment made after the statute of limitations has expired. 7. The parties debate the applicability of Town of Blooming Grove v. City of Madison, 4 Wis. 2d 447, 90 N.W.2d 573 (1958). At the time relevant to that case, the provision for challenging annexations provided a sixty-day time peri......
-
Town of Windsor v. Village of DeForest
...the statute grants the right to enforce strict compliance with the required annexation procedures. Town of Blooming Grove v. City of Madison, 4 Wis. 2d 447, 452, 90 N.W.2d 573, 576 (1958). However, the action must commence within ninety days after the enactment of the annexation ordinance, ......
-
In re Annexation of Becker, No. 02-2541 (Wis. App. 11/13/2003), 02-2541.
...amendment made after the statute of limitations has expired. 6. The parties debate the applicability of Town of Blooming Grove v. City of Madison, 4 Wis. 2d 447, 90 N.W.2d 573 (1958). At the time relevant to that case, the provision for challenging annexations provided a sixty-day time peri......
-
State ex rel. City of Madison v. Village of Monona
...the village of Monona had attempted to do so, it would not be barred by lapse of time. On this point, see Town of Blooming Grove v. Madison, 1958, 4 Wis.2d 447, 456, 90 N.W.2d 573. ...