Town of Blooming Grove v. City of Madison

• Decision Date: 05 March 1957
• Citation: 81 N.W.2d 713,275 Wis. 328
• Parties: TOWN OF BLOOMING GROVE, Respondent, v. CITY OF MADISON, Appellant.
• Court: Wisconsin Supreme Court

Page 713

81 N.W.2d 713

275 Wis. 328

TOWN OF BLOOMING GROVE, Respondent, v. CITY OF MADISON, Appellant.

Supreme Court of Wisconsin.

March 5, 1957.

As Modified on Denial of Rehearing May 7, 1957.

Harold E. Hanson, City Atty., Leon E. Isaksen, Special Counsel, Madison, Thomas, Orr, Isaksen & Werner, Trayton, L. Lathrop, Madison, of counsel for appellant.

Earl I. Cooper, Madison, William J. P. Aberg and Paul C. Gartzke, Madison, of counsel for respondent.

WINGERT, Justice.

At the outset we confront a number of preliminary and procedured objections to the propriety of deciding the case on the merits, which are advanced by the city. We consider, as did the circuit judge, that none of them is well taken and that the merits are properly before us. On the merits, we hold that the annexation ordinance is void because of failure to comply with the requirements of sec. 62.07(1)(b), Stats. 1953 relating to publication of the proposed ordinance in advance of its adoption.

1. The city contends that the interest of the town had ceased to exist before judgment, and therefore it was improper to enter a judgment. It is argued that a town has no interest in the alteration of its boundaries except as provided in sec. 66.029, Stats.; that that statute permits the town to test the validity of the proceedings only insofar as necessary to resolve uncertainties which will hamper the town in its planning; that such uncertainties cease after the time has expired within which residents of the annexed territory can attack the validity of the annexation, which period is 90 days after adoption with respect to non-jurisdictional defects and a reasonable time with respect to jurisdictional defects; and that a reasonable time had expired before the decision below, which came some 26 months after the ordinance was adopted; and therefore the case had become moot before decision so far as the town is concerned.

This contention gives too limited effect to sec. 66.029. That section is an unqualified declaration that in annexation proceedings 'the town is an interested party,' and it authorizes the town board to maintain an action to test the validity of the proceedings, without qualification as to time or ground of attack. The present action was commenced 79 days after the ordinance was adopted, and thus within the 90 day period specified by sec. 62.07(3) for the commencement of such actions. It would obviously be impossible to obtain a final judicial determination within the 90 day period after passage of the ordinance, and there is nothing to show that the town was guilty of any want of diligence in the prosecution of its action.

The city points to certain language in Town of Madison v. City of Madison, 269 Wis. 609, 616, 70 N.W.2d 249, in which this court stated arquendo that the town has an interest in compliance with the required procedure for annexation, since an invalid annexation would hamper and prejudice the planning and operation of the town's governmental affairs. It was not meant to intimate that the interest of the town, recognized and implemented by sec. 66.029, Stats., would cease as soon as it was too late for any other party in interest to commence an action to test the validity of the annexation; and we do not think that such an interpretation of the court's language is warranted.

In short, we construe sec. 66.029, Stats. as authorizing the town not only to commence the action, but also to see it through to a conclusion.

2. It is argued that the action must fail because the residents in the area are the real parties in interest and no resident is joined as a party to the action.

If there was a defect of parties, it was waived by failing to assert it by answer or demurrer. Sec. 263.12, Stats.; Village of Brown Deer v. City of Milwaukee, 274 Wis. 50, 69, 79 N.W.2d 340. A motion for summary judgment goes to the merits and does not take the place of a demurrer. Fredrickson v. Kabat, 260 Wis. 201, 204, 50 N.W.2d 381. McLoughlin v. Malnar, 237 Wis. 492, 495, 297 N.W. 370. Here the court had jurisdiction of the parties and the subject matter. Town of Madison v. City of Madison, 269 Wis. 609, 616, 70 N.W.2d 249.

We prefer, however, to deal with this contention on its merits, and we hold that the action may be maintained by the town without joining any resident of the annexed area. Sec. 66.029 recognizes that the town may 'maintain' an action to test the validity of the annexation. Sec. 260.15, Stats. authorizes 'a person expressly authorized by statute' to sue 'without joining with him the person for or against whose benefit the action is prosecuted.' 'Person' includes bodies politic, sec. 990.01(26). The two statutes, secs. 66.029 and 260.15, furnish ample authority for the maintenance of the present action by the town as representative of like-minded residents to the affected area, without joining any of such residents as parties.

Fish Creek Park Co. v. Village of Bayside, 273 Wis. 89, 76 N.W.2d 557, and Schatzman v. Town of Greenfield, 273 Wis. 277, 77 N.W.2d 511, cited by the city, hold that residents in the annexed area may maintain an action to challenge the validity of the annexation, and in such an action the town is not a necessary party; but they do not hold that residents are indispensable parties in an action by the town itself, under sec. 66.029, Stats. Cf. White House Milk Co. v. Thomson, Wis., 81 N.W.2d 725.

It is urged that since no resident is a party to the action, the judgment will not settle anything, because it will not be binding on the residents of the affected area. The judgment will certainly settle the rights of the town and the city in the premises, and since under secs. 66.029 and 260.15, Stats. it is in substance a statutory representative action, the adjudication will, in practical effect, bind the residents as well. Affected residents wishing to assert rights at variance with the claims of either town or city may protect themselves by intervention or prompt commencement of a separate action. The cannot sit by, do nothing, and avoid being bound by the judgment in the town's action.

3. The declaratory feature of the judgment is challenged as improper because resident of the annexed area, who are said to be necessary parties, have not been joined. Reliance is placed on subsec. (11) of the declaratory judgment act, sec. 269.56, Stats., which provides that 'when declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the right of persons not parties to the proceeding.'

As pointed out under section 2 of this opinion, any defect of parties has been waived by failure to assert it by answer or demurrer. However, we think it well to dispose of the contention on the merits.

We do not construe the statute as requiring that where a declaratory judgment as to the validity of a statute or ordinance is sought, every person whose interests are affected by the statute or ordinance must be made a party to the action. If it were so construed, the valuable remedy of declaratory judgment would be rendered impractical and indeed often worthless for determining the validity of legislative enactments, either state or local, since such enactments commonly affect the interests of large numbers of people. See White House Milk Co. v. Thomson, Wis., 81 N.W.2d 725.

The above-quoted provision of sec. 269.56(11) must be read in the light of other provisions of the same statute. Subsec. (2) authorizes any person whose rights are affected by a statute or municipal ordinance to have determined any question of validity arising thereunder. (The town is a 'person' within the meaning of that provision, secs. 66.029 and 990.01(26). Subsec. (11) provides that in any proceeding which involves the validity of a municipal ordinance (here the annexation ordinance), the municipality shall be made a party. Subsec. (12) declares the declaratory judgments act to be remedial, and that it is to be liberally construed and administered. These provisions, which so clearly show the purpose to make declaratory relief available in proper cases for those aggrieved by uncertainties as to the validity of municipal ordinances and even state statutes, should not be nullified by an inconistent and unduly literal interpretation of the provisions of subsec. (11) relative to the joinder of parties.

With subsec. (11) should also be read sec. 260.15, permitting an action by 'a person expressly authorized by statute', without joining the person for or against whose benefit the action is brought, and sec. 66.029 authorizing the town to challenge the validity of an annexation.

We hold, therefore, that declaratory relief may be granted in an action brought by a town pursuant to sec. 66.029 to challenge the validity of a city ordinance purporting to annex territory within the town, without joining residents or taxpayers in the effected area. We consider applicable the principle stated by a textwriter as follows:

'Where public officers are engaged in litigation to protect public rights and their proceedings and procedure maintain public interests, private persons are not necessary parties because they do not have any rights to protect which are not being protected.' Anderson, Actions for Declaratory Judgments, 297.

4. The city asserts that it was error to grant injunctive relief, because the complaint contains no allegation of irreparable injury and no showing of such injury is made on the motion for summary judgment. It is argued that the town has no interest in the alteration of its boundaries and cannot be injured by the annexation, since detachment of territory reduces its burdens as well as its tax base, and the public assets and liabilities will be apportioned. In re Incorporation of the Village of Chenequa, 197 Wis. 163, 167, 221 N.W. 856, and other cases are cited.

Injunctive relief may be granted in aid of a declaratory...