Town of Greenfield v. Village of West Milwaukee

• Decision Date: 06 March 1956
• Citation: 75 N.W.2d 424,272 Wis. 215
• Parties: TOWN OF GREENFIELD, Appellant, v. VILLAGE OF WEST MILWAUKEE, Respondent. In re Adjustment of Assets and Liabilities between Village of West Milwaukee and Town of Greenfield.
• Court: Wisconsin Supreme Court

Page 424

75 N.W.2d 424

272 Wis. 215

TOWN OF GREENFIELD, Appellant, v. VILLAGE OF WEST MILWAUKEE, Respondent In re Adjustment of Assets and Liabilities between Village of West Milwaukee and Town of Greenfield.

Supreme Court of Wisconsin.

March 6, 1956.

Laurence C. Gram, Town Counsel, West Allis, for appellant.

Maxwell H. Herriott, Sp. Counsel for village of West Milwaukee, Milwaukee, for respondent.

FAIRCHILD, Chief Justice.

There is no dispute in the proceeding on appeal here as to the validity of the annexations involved. Appellant town advances as its two chief contentions: first, that sec. 66.03, Stats. is not applicable to the situation existing in the instant case; second, that the respondent village, in any event, has barred itself by laches from the division of assets and liabilities which it seeks.

As to its first contention, the town argues that sec. 66.03, Stats. is a general statute which merely sets up machinery for carrying out the provisions of certain special statutes which specifically invoke sec. 66.03, and calls attention to sec. 60.06(5), Stats., pertaining to division of credits and liabilities when a new town is created; sec. 61.17, Stats. pertaining to division of joint property when a new village is created; and sec. 60.31(2)(b), pertaining to division of assets when a part of a sanitary district is annexed to a village or city. It is maintained that because those sections specifically invoke the application of sec. 66.03, if the legislature had intended sec. 66.03 to apply to annexation of a portion of a town to an already existing municipality, it would, in the same manner, have specifically invoked sec. 66.03 in the annexation statutes. Thus, the town claims that sec. 66.03 does not apply to a situation in which a portion of a municipality, such as the town of Greenfield, is annexed to an already existing municipality, such as the village of West Milwaukee.

Prior to the commencement of this proceeding, except in school district cases, sec. 66.03, Stats. has never been resorted to by any already existing municipality upon annexation to it of a portion of another municipality. The problem confronting us here with reference to the applicability of sec. 66.03 did not have to be dealt with in Town of Cassian v. Nokomis, 254 Wis. 94, 35 N.W.2d 408, or in Village of Bayside v. Town of Milwaukee, 267 Wis. 448, 66 N.W.2d 129. Those cases concerned situations in which an entirely new municipality was created from a portion of an old one, and there was no question but that sec. 66.03 was applicable, because it was invoked by specific statutes governing those situations.

Appellant, further arguing that 66.03, Stats. could not have been intended to apply to every case where the territory of one municipality is transferred to that of another municipality, points out that in the event of an annexation to a village of a portion of a town there is no division of assets of the school district. In such a situation it is provided by statute that there shall be no change in the boundaries of a school district. A school district is a distinct and separate municipal entity. If there is no change in its boundaries, no territory of the school district has been transferred, but it remains the same, and sec. 66.03, providing for a division of assets and liabilities 'when territory is transferred * * * from one municipality to another' has no bearing upon the situation. There has been no division of the territory of the school district. However, as appellant points out, sec. 66.03 does apply when an annexation is made from a town to a city, because in that event the boundaries of the school districts involved are changed. It is noted that in spite of the fact that there is no specific statute invoking sec. 66.03 in such an event, and contrary to its contention that there must be such a specific statute in order that sec. 66.03 may be applied, appellant concedes that sec. 66.03 does apply to school districts where a portion of a town is annexed to a city.

In State ex rel. Thompson v. Beloit City School District, 215 Wis. 409, 253 N.W. 598, 601, Mr. Chief Justice Rosenberry, referring to Town of Milwaukee v. City of Milwaukee, 12 Wis. 93, 103, pointed out that:

'There is a limitation upon the power of the Legislature to abolish municipal corporations and to annex the property of the dissolved corporation to another municipal corporation without provision for a fair and equitable distribution of its property and liabilities. * * * It was there held that, while such a corporation is subject to control, change, and even destruction, so far as its public function is concerned, it held its property as does any individual and that these property rights must be fairly and equitably provided for in whatever changes are made in its franchises; that in default of this the corporation retains such entity as is essential to vindicate these property rights. In response to this decision a section was added to the statutes intended to provide a scheme to equitably distribute and to adjust property rights and debts in such a situation.'

In the case of Town of Milwaukee v. City of Milwaukee, supra, it was held that no division of property was required under common law, and the court in that case said, 12 Wis. 110 [Reprint at page 123]:

'Still the inhabitants of the city, by procuring it to be incorporated as such, without any provision as to the land, and by an acquiescence of six years and upwards, must be presumed to have released their interest in it and to have consented that it remain the sole property of the town as it was after such division. * * * By incorporating the city, without dividing the land, it became the sole property of the town; and, if such effect was inequitable, it was not in the power of the legislature, without the consent of the town, afterwards to remedy the evil.'

If, then, as stated in the Thompson case, the legislature 'in response to [that] decision' enacted sec. 944, Stats.1898 in an effort to overcome possible inequities such as referred to in the Town of Milwaukee case, supra, and to provide a fair and equitable distribution in such situations, the legislature must have contemplated from the beginning circumstances involving the annexation of a portion of a municipality to an already existing municipality. In that respect, the situation in the instant case is the same as it was in that early case which provoked or led to the act of 1898.

In 1921, sec. 944, Stats.1898 was repealed, and, by sec. 4 of Bill 22, S, ch. 396, Laws of 1921, sec. 66.03 was created in substantially its present form. The purpose of the 1921 enactment is clearly stated in the revisor's note as follows:

'Uniform system is here substituted for the numerous repetitions of detail now in the statutes. The same principle of adjustment is provided in all cases by the various sections here consolidated, and the present system provides one * * * procedure for all cases, in language sufficiently general to cover all cases.' See 1930 Annotations.

The plain language of the statute directs that 'when territory is transferred, in any manner provided by law, from one municipality to another, there shall be assigned to such other municipality * * *.' Furthermore, sec. 66.03(9), Stats. expressly refers to the detachment from a municipality 'by creation of a new municipality or otherwise' and requires the transcript of records in respect to the detached territory to be delivered 'upon demand by the proper office of the municipality created from the detached territory or to which it is annexed.'

Further, as stated in the Thompson case, 215 Wis., at page 414, 253 N.W. at page 600: 'The statute itself is so clear as not to create any ambiguity calling for rules of construction.' At page 418 of 215 Wis., at page 602 of 253 N.W. the following language occurs:

'The scope of the section is indicated in sub. (2), which provides that the section shall operate in every case where territory is transferred from one municipality to another * * *. It is obvious that the existence of section 66.03 destroys the force of the argument that the application of Chapter 425 to the Beloit situation would produce an unconstitutional or an absurd result. It may be supposed that the Legislature, having already by general law provided for the apportionment of property and debts in section 66.03, would not consider it necessary to expressly provide for the matter.'

Sec. 66.03, Stats., then, embraces substantive as well as procedural law; and the trial court adhered to the provisions therein both in granting to the village its right to a division of assets and liabilities sought and in making the apportionment in accordance with the method fixed by the statute.

The sum of $1,000 as the village's proportion of assets under the 1951 annexations is not in dispute. The trial court adopted the estimated proportion computed by the town's accountant. Both the village accountant and the town accountant in their computations of net assets (Ex. 2, sec. 1, and Ex. 2, sec. 2, respectively) show the assessed valuation of the town of Greenfield as of May 1, 1950 to be $67,394,032, and the assessed valuation of the property annexed to the village of West Milwaukee on the September annexation dates to be $27,717,747 and determine the apportionment percentage to be 41.12789% to the village. These figures were adopted by the court, and the precentage of apportionment is the statutory percentage.

The dispute is over the amount of the town assets apportionable under the September 1950 annexations. The village fixed September 30, 1950 as the date for computing the assets; the town computed its assets as of March 31, 1950. The court determined September 30, 1950 as the proper date for computing the assets. Taking the figures as of that date computed by the village accountant, he determined that the net assets attributable to the general fund surplus, i. e., the...