Town of Brookfield v. City of Brookfield

• Citation: 274 Wis. 638,80 N.W.2d 800
• Parties: TOWN OF BROOKFIELD, a Municipal Corporation, Respondent, v. CITY OF BROOKFIELD, a Municipal Corporation, Appellant.
• Decision Date: 05 February 1957
• Court: United States State Supreme Court of Wisconsin

Page 800

80 N.W.2d 800

274 Wis. 638

TOWN OF BROOKFIELD, a Municipal Corporation, Respondent, v. CITY OF BROOKFIELD, a Municipal Corporation, Appellant.

Supreme Court of Wisconsin.

Feb. 5, 1957.

Richard W. Cutler, City Atty., T. L. Tolan, Jr., Albert M. Witte, Milwaukee, and Wood, Warner, Tyrrell & Bruce, Milwaukee, of counsel, for appellant.

Clayton A. Cramer, Waukesha, Harold H. Fuhrman, Milwaukee, Atty., Village of Brown Deer, amicus curiae, Wickert & Fuhrman, Milwaukee, of counsel, for respondent.

BROADFOOT, Justice.

The territory sought to be annexed consisted of about 1,850 acres and the town alleged that about 1,600 acres thereof was, on the date of the petition for annexation, composed of agricultural lands. There were 120 electors residing within the area. The petition for annexation contained the names of 63 of said electors, and was filed April 1, 1955. After filing, the proposed annexation ordinance was introduced in the city council and ordered published for the statutory period. On May 4, 1955, a petition was filed with the city clerk of the city signed by 27 of the 63 signers, requesting that their names be withdrawn from the original petition. On May 12, 1955, the date of the enactment of the ordinance by the city council, an additional copy of the annexation petition was filed with the city clerk of the city in support of the annexation. This copy of the petition was signed by 21 of the 27 original signers who had withdrawn their signatures and by six electors who had not theretofore signed a copy of the petition. In the meantime two additional electors had moved into the area. The supplemental copy of the annexation petition brought the total number of electors signing to 63, which was a majority of the 122 qualified electors.

It is conceded by the town that all statutory requirements were complied with up to the time of the filing of the withdrawal petition. The town further concedes that electors who withdraw their names from an annexation petition may reinstate their signatures at any time prior to the final enactment of the ordinance by the city council. The town contends, however, that electors who did not sign the original petition for annexation cannot thereafter file supplemental petitions. The city, on the other hand, contends that supplemental petitions for annexation containing the signatures of qualified electors within the area may be filed and considered by the city council if done prior to the enactment of the annexation ordinance. The trial court held that under the procedure followed the city council lost jurisdiction; therefore the annexation ordinance was void.

Annexation is a statutory procedure. The statutes of different states vary considerably in the procedures outlined. In Wisconsin the procedure is outlined in sec. 62.07, Stats. A reading of that section shows that the statute does not answer all questions that may arise thereunder, and this court had been required to supply some of the answers under the general outline therein. Our decisions have held that a valid petition must be filed with the city council in order to authorize the introduction of a proposed ordinance of annexation and an order for the publication thereof. We have also held that petitioners may withdraw their signatures prior to final action by a city council. Town of Blooming Grove v. Madison, 253 Wis. 215, 33 N.W.2d 312; Town of Greenfield v. City of Milwaukee, 273 Wis. 484, 78 N.W.2d 909.

The opinion in the Blooming Grove case reviews earlier Wisconsin cases and it is there stated that the purpose of publication of the proposed annexation ordinance is to advise those who are interested that the matter is before the common council for consideration. It was further held in that case that no rights are acquired by anyone by virtue of the introduction and publication of a proposed annexation ordinance. The original notice that annexation proceedings are to be commenced is given by posting notices thereof within the area proposed to be annexed. In the Blooming Grove case it was held that one of the purposes for giving further notice by publication of the proposed ordinance is to permit a petitioner to withdraw his name at any time prior to such final action. It was held in the Greenfield case, supra, that another purpose is to permit electors who have withdrawn their signatures to reinstate them at any time prior to final action upon further consideration of the question.

The town relies heavily upon the case of Village of Lakeville v. Palmer, reported in Ohio Com.Pl., 136 N.E.2d 171. That case was decided upon jurisdictional grounds. It was there held that if the original petition is deficient in the number of signers on the day of filing no jurisdiction can be invoked. Likewise if it later becomes deficient in that respect the jurisdiction already invoked is lost and no additional signatures may be supplied. It should be noted that the decision in that case was by the judge of the court of common pleas of Ashtabula county, Ohio. As we understand it, that is a trial court and not an appellate court.

It would be impossible to follow the jurisdictional rule in Wisconsin without reversing our prior decisions. If literally followed, the jurisdictional rule would prevent the withdrawal of signatures from the original petition. Under that theory any time the number of signatures fell below the required number the council would lose jurisdiction to take any further steps with respect to the proposed annexation. However, we have held not only that signatures may be withdrawn at any time before final action by the city council but that those signatures can be reinstated by the filing of a petition withdrawing the...