Town of Fond du Lac v. City of Fond du Lac

• Decision Date: 12 February 1964
• Citation: 126 N.W.2d 201,22 Wis.2d 533
• Parties: TOWN OF FOND DU LAC, a municipal corporation, Kiekhaefer Corporation, a foreign corporation, and International Paper Company, a foreign corporation, Plaintiffs-Appellants, v. CITY OF FOND DU LAC, a municipal corporation, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 201

126 N.W.2d 201

22 Wis.2d 533

TOWN OF FOND DU LAC, a municipal corporation, Kiekhaefer Corporation, a foreign corporation, and International Paper Company, a foreign corporation, Plaintiffs-Appellants, v. CITY OF FOND DU LAC, a municipal corporation, Defendant-Respondent.

Supreme Court of Wisconsin.

Feb. 12, 1964.

Rehearing Denied March 31, 1964.

Foley, Sammond & Lardner, Milwaukee; Marvin E. Klitsner and Gilbert W. Church, Milwaukee, of counsel, for Kiekhaefer Corp.

Whyte Hirschboeck, Minahan, Harding & Harland, Milwaukee; Roger C. Minahan and Edward D. Cleveland, Milwaukee, of counsel, for International Paper Co.

Henry B. Buslee, City Atty., Fond du Lac, for respondent.

HALLOWS, Justice.

The plaintiffs raise four questions on this appeal: (I) Is the annexation void because of the manner in which the signatures of the majority of the electors on the petition were secured by the city, (II) is the annexation void because an island of town territory was created within the city in order to prevent the electors residing therein from participating in the annexation proceeding, (III) was the city a qualified owner entitled to sign the annexation petition, and (IV) can a city initiate an annexation proceeding under sec. 66.021, Stats.? Territory contiguous to a city may be annexed thereto by direct annexation. A petition filed with the city signed by a majority of the electors residing in such territory and the owners of one-half of the land in area within such territory meets the requirements of sec. 66.021(2)(a). The annexation was completed by the defendant's adoption of the annexation ordinance on July 27, 1961. Sec. 66.021(7)(d).

I. Is the annexation void because of the manner in which the signatures of the majority of the electors on the petition were secured by the city?

The plaintiffs argue the city directly used economic pressure in promoting the annexation by agreeing to give a year's free rent to the Haensgens and by threatening the Zimphers with eviction, and indirectly by the oral agreement with the Waldschmidts from whom the city had purchased most of its land to obtain the signatures of their tenants, the remaining three electors. The city justifies its activities on the theory, 'It may do as it wishes with property as is the case with any other property owner' and may use persuasion to obtain favorable consideration of its position.

The signing of a petition for annexation is more than the exercise of a private right or of a property right. The right of an elector to participate in an annexation proceeding partakes of the nature of a political right 'analogous to voting upon the question' and therefore must be the elector's 'individual act * * * discharging his duty in shaping and influencing this particular affair of government.' DeBauche v. City of Green Bay (1938), 227 Wis. 148, 277 N.W. 147. In that case we held an elector could not delegate the signing of a petition although the signing was done by another on his behalf and in his presence. We pointed out in Town of Scott v. City of Merrill (1962), 16 Wis.2d 91, 113 N.W.2d 846, that many aspects of annexation are political and subject to political pressures of conflicting interests especially in the signing of the annexation petition and in the voting of the city council. But that is not to say political pressures are without limitations. The signing of an annexation petition, like voting, constituting participation in a governmental process is governed by a higher standard of conduct than prevails in the marketplace--votes are not a commodity of commerce. Village of Brown Deer v. City of Milwaukee (1957), 2 Wis.2d 441, 86 N.W.2d 487.

A campaign period is anticipated by sec. 66.021(4), Stats., which limits the commencement of the circulation of the petition to a period not less than 10 days nor more than 20 days after the date of publication of the notice of intention to circulate and requires the petition to be filed within six months of the date of publication. Discussion and debate on an issue by the electors is part of the democratic process. But the use of economic pressure by the defendant-city interested in the outcome of the annexation to obtain favorable signatures of the necessary electors in this case is a shocking disregard of the political process of government. The city's action was the equivalent of buying votes and improper. This is true regardless of whether such bargaining took place before the so-called campaign period or during it.

The action of the city cannot be justified on the ground of a property right or the freedom to use one's property as he wishes. No property owner, city or individual, possesses any right to induce by contract or threat an elector to vote a particular way or to sign an annexation petition because of special economic consideration unrelated to the political issue involved. This is not to say one cannot persuade an elector to vote in favor of his general interest in the outcome of a political issue. In the former case the extraneous outside factor defiles the integrity of the political act and destroys its validity. In the latter case, the preexisting self-interest is a legitimate motivation for one's act. The four signatures of the city's tenants, the Haensgens and Zimphers, are invalid. It is conceded without these the petition fails for want of signatures of the majority of the electors.

II. Is the annexation void because an island of town territory was created within the city in order to prevent the electors residing therein from participating in the annexation proceeding?

It is undisputed the boundary line of the annexed area was drawn so as to create an island 300 by 130 feet bounded on three sides by the annexed territory and on the north by the city's existing boundary and thus excluded the electors living therein. The city claims it is wholly within its discretion to 'gerrymander' the boundary lines of the annexed territory, relying on City of Madison v. Village of Monona (1960), 10 Wis.2d 32, 102 N.W.2d 206, and In re Incorporation of Village of Oconomowoc Lake (1959), 7 Wis.2d 400, 97 N.W.2d 189. In using the word 'gerrymander' we did not mean to imply the discretion to determine the boundary lines of a city was wholly without limitations and could transcend into the realm of arbitrary and capricious action. The creation of the island is not attempted to be justified on any use of extension of governmental services such as sewer and water mains, schools, police or fire protection, or of the unsuitability or adaptability of the land to the city's purpose or of the creating of an industrial area. Nor from the record could it be so justified.

This court has authority to review the annexation of territory to a city or village and apply the test of reason. This principle was first announced in Smith v. Sherry (1880), 50 Wis. 210, 6 N.W. 561, and applied to the question of suitability or adaptability of land to city uses and needs in Town of Wilson v. City of Sheboygan (1939), 230 Wis. 483, 283 N.W. 312, and Town of Greenfield v. City of Milwaukee (1956), 273 Wis. 484, 78 N.W.2d 909. The rule of reason applies to the exclusion of land consisting of an internal island as well as the inclusion of land by the external boundaries. The exclusion of land by the creation of an island within the city by the process of annexation must be as reasonably justified as the inclusion of the land around the island for city needs and purposes. A hole in a doughnut is...