Town of Germantown v. Village of Germantown

• Decision Date: 25 November 1975
• Docket Number: No. 620,620
• Parties: TOWN OF GERMANTOWN, a Political Subdivision, Appellant, v. VILLAGE OF GERMANTOWN, a Municipal Corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 486

235 N.W.2d 486

70 Wis.2d 704

TOWN OF GERMANTOWN, a Political Subdivision, Appellant, v. VILLAGE OF GERMANTOWN, a Municipal Corporation, Respondent.

No. 620.

Supreme Court of Wisconsin.

Nov. 25, 1975.

Schloemer, Schlaefer, Alderson, Hickmann, Seefeldt & Spella, S.C., West Bend, for appellant.

O'Meara & O'Meara, West Bend, Jean G. Setterholm and Paul J. Swain, Madison, amicus curiae beief of League of Wisconsin Municipalities, for respondent.

CONNOR T. HANSEN, Justice.

This case relates to sec. 66.021, Stats., entitled Annexation of town islands. The statute was created by ch. 143, Laws of 1973, and became effective December 2, 1973.

The statute provides:

'66.021 Annexation of territory. . . .

'(15) Annexation of town islands. Upon its own motion, a city or village by a two-thirds vote of the entire membership of its governing body may enact an ordinance annexing territory which comprises a portion of a town or towns and which was completely surrounded by territory of the city or village on December 2, 1973. The ordinance shall include all surrounded town areas except those exempt by mutual agreement of all of the governing bodies involved. The annexation ordinance shall contain a description of the territory sufficiently accurate to determine its location, and the name of the town or towns from which such territory is detached. Upon enactment of the ordinance, the city or village clerk immediately shall file 5 certified copies of the ordinance in the office of the secretary of state, together with 5 copies of a scale map showing the boundaries of the territory annexed. The secretary of state shall forward 2 copies of the ordinance and scale map to the department of transportation, one copy to the department of revenue and one copy to the director of the planning function in the department of local affairs and development. This subsection does not apply if the town island was created only by the annexation of a railroad right-of-way or drainage ditch. This subsection shall not apply to land owned by a town government which has existing town government buildings located thereon. No town island may be annexed under this subsection if the island consists of over 65 acres or contains over 100 residents. After December 2, 1973, no city or village may, by annexation, create a town area which is completely surrounded by said city or village.'

The facts are not in dispute. On December 17, 1973, the village enacted the ordinance by unanimous vote of its seven-member board. The ordinance annexed the two town islands which were at that time part of the town but were surrounded by portions of the village. The two parcels are identified as Parcel 1 and Rockfield.

Parcel 1, in December of 1973, consisted of less than 65 acres, contained less than 100 residents and was completely surrounded by village territory. Rockfield, in December of 1973, consisted of less than 65 acres, and was completely surrounded by village territory. A dispute exists as to the number of residents. It concerns the status of Joseph E. Thiesen, a college student.

Before December 18, 1973, no formal notice was given to the town that the village intended to annex two parcels of its land. On that date, the notice of annexation was published in the newspaper.

We consider that this appeal presents the following issues:

1. Does the town have the capacity to challenge sec. 66.021(15), Stats., on constitutional grounds?

2. Did the village comply with the requirements of sec. 66.021(15), Stats., when it adopted the annexation ordinance?

3. Must the village show a reasonable present or future need for the parcels annexed pursuant to sec. 66.021(15), Stats.?

4. Was Joseph E. Thiesen a 'resident' of Rockfield during December of 1973?

5. Should determinations regarding residency be made based on the effective date of sec. 66.021(15), Stats., or at the time of any ordinance enacted pursuant thereto?

CAPACITY TO CHALLENGE CONSTITUTIONALITY.

The town argues that sec. 66.029, Stats., empowers a town to challenge in a representative capacity the validity of annexation proceedings.

Sec. 66.029, Stats., Town boundaries, actions to test alternations, provides:

'. . . In proceedings whereby territory is attached to or detached from any town, the town is an interested party, and the town board may institute, maintain or defend an action brought to test the validity of such proceedings, and may intervene or be impleaded in any such action.'

The town also urges that the Declaratory Judgments Act, sec. 269,56, provides procedural machinery for attacks under sec. 66.029, supra, including constitutional challenges.

It has been a long-standing rule in this state that legislatively-created entities of the state, including towns, have no capacity to make constitutional challenges to statutes. Village of Sussex v. Dept. of Natural Resources (1975), 68 Wis.2d 187, 197, 228 N.W.2d 173; Marshfield v. Cameron (1964), 24 Wis.2d 56, 63, 127 N.W.2d 809; State ex rel. La Crosse v. Rothwell (1964), 25 Wis.2d 228, 233, 130 N.W.2d 806, 131 N.W.2d 699; Columbia County v. Wisconsin Retirement Fund (1962), 17 Wis.2d 310, 116 N.W.2d 142.

An argument similar to that raised by the town with respect to procedural statutes granting a legal entity the capacity to sue to protect its interests was raised in Columbia County, supra. This court therein held that such enabling statutes do not abrogate the traditional rule cited above.

Section 66.029, Stats., does not give the town the capacity to attack the constitutionality of the challenged statute. However, the town does have the right to protect its interest with respect to the validity of the proceedings conducted pursuant thereto which resulted in the promulgation of the annexation ordinance. Blooming Grove v. Madison (1957), 275 Wis. 328, 332 81 N.W.2d 713, 715, is not in conflict with this provision. That case does state that sec. 66.029, Stats., authorizes a 'town board to maintain an action to test the validity of the proceedings, without qualification as to time or ground of attack.' However, the case goes to the question of the appropriateness of the proceedings, not the constitutionality of the statute by authority of which those proceedings were conducted. Section 66.029 and the Declaratory Judgment Act do not abrogate the traditional rule, applicable to towns, Marshfield v. Cameron, supra, that legislatively-created entities generally do not have capacity to challenge the constitutionality of a legislative enactment.

Notwithstanding the general rule referred to above, certain exceptions have been recognized by this court. The recognized exceptions are that a legislatively-created entity may challenge the constitutionality of a statute:

'. . . (1) (i)f it is the agency's official duty to do so, or the agency will be personally affected if it fails to do so and the statute is held invalid, and (2) if the issue of 'great public concern. " State ex rel. La Crosse v. Rothwell, supra, 25 Wis.2d page 233, 130 N.W.2d page 808.

The town contends that Fulton Foundation v. Department of Taxation (1961), 13 Wis.2d 1, 14b, 108 N.W.2d 312, 109 N.W.2d 285, 286, recognizes a third exception to the rule. We do not agree. In Fulton, the department was allowed to challenge a statute on equal protection grounds. This court decided that the grounds asserted were of great public concern and, in doing so, observed:

'There is a further reason of policy for holding that the department should be permitted to raise this particular issue of constitutionality. This is that unless the department is permitted to do so there is little likelihood that any taxpayer will. . . .'

Neither Fulton Foundation, supra, nor State ex rel. Sullivan v. Boos (1964), 23 Wis.2d 98, 101, 126 N.W.2d 579, create a third exception based upon the sole fact that a governmental entity can raise the issue of constitutionality because there is little likelihood that any affected individual would do so. Both of these cases stand for the proposition that the fact no individual is likely to challenge the enactment may be a consideration in the judicial determination of whether the alleged constitutional issues fall within the 'great public concern' exception.

Contrary to the assertion of the town, Town of Salem v. Kenosha County (1973), 57 Wis.2d 432, 434, 204 N.W.2d 467, does not support the argument that the town has capacity to challenge the constitutionality of sec. 66.021(15), Stats. Town of Salem, supra, reaffirms the principle that a municipal corporation may test the validity of an ordinance or law applied to it to determine whether it complies with the requirements of the enabling statute. The case holds that if an ordinance is not passed under a statutory grant of authority, it is constitutionally invalid.

In re City of Beloit (1968), 37 Wis.2d 637, 155 N.W.2d 633, presented the question of the validity of an annexation ordinance, not the constitutionality of a statute. The trial court found that it had no jurisdiction to make a determination of the issue being litigated, because the statute delegated legislative authority to the court. Thus the towns were not challenging the constitutionality of the statute. The appeal was based upon the determination of the trial court that it lacked jurisdiction. We affirmed.

The town's final argument is that the rule of reason gives the town authority to challenge the constitutionality of the statute. However, the authorities cited to support this contention go to the question of whether procedures followed in the adoption of ordinances comport with constitutional requirements, not whether the statute itself is constitutional.

The town lacks capacity to challenge the constitutionality of sec. 66.021(15), Stats., and the order by the trial court striking from the complaint the allegations involving constitutional challenges was appropriate.

Since we determine the town has no capacity to challenge the...