Town of Greenfield v. City of Milwaukee

• Decision Date: 03 April 1951
• Parties: TOWN OF GREENFIELD, v. CITY OF MILWAUKEE. TOWN OF GREENFIELD, v. CITY OF WEST ALLIS.
• Court: Wisconsin Supreme Court

Page 292

47 N.W.2d 292

259 Wis. 77

TOWN OF GREENFIELD, v. CITY OF MILWAUKEE.

TOWN OF GREENFIELD, v. CITY OF WEST ALLIS.

Supreme Court of Wisconsin.

April 3, 1951.

Rehearing Denied June 15, 1951.

J. Finn Grimes, Milwaukee, C. R. Dineen and Neal J. Gleason, Milwaukee, of counsel, for appellant.

Walter J. Mattison, City Atty., Richard F. Maruszewski, Asst. City Atty., Milwaukee, for City of Milwaukee.

Miller, Mack & Fairchild, and Lecher, Michael, Spohn, Best & Friedrich, Milwaukee, amici curiae, Ronold A. Drechsler, J. Gilbert Hardgrove and Thomas S. Stone, Milwaukee, of counsel.

MARTIN, Justice.

It is undisputed that the territories described in the respective petitions overlap, in that a certain area in the town of Greenfield and attempted to be annexed to both the city of West Allis and to the city of Milwaukee. It will be readily conceded that there cannot be two corporations or municipalities organized for similar purposes with coextensive powers of government extending over the same area. In re Incorporation of Village of St. Francis, 1932, 208 Wis. 431, 436, 243 N.W. 315.

Where two proceedings are begun about the same time and in good faith, whereby each attempts to annex the same area, the proceedings first instituted must have precedence. In re Incorporation of Village of St. Francis, supra, 208 Wis. at pages 434, 436, 243 N.W. 315.

The movement to annex to the city of West Allis commenced on August 2, 1948, at which time notice of circulation of the petition for annexation was caused to be posted in eight public places within the town of Greenfield by the Sid Dwyer Building Corporation. A copy of said notice was published in a newspaper of general circulation in Milwaukee county on August 5, 1948. This was in compliance with sec. 62.07(1)(a), Stats., the pertinent part of which provides: '* * * provided, that no petition for annexation shall be valid unless at least thirty days and not more than forty-five days before any such petition is caused to be circulated, a notice shall be posted in at least eight public places in the municipality in which the adjacent territory is located, and a copy of such notice published in a newspaper of general circulation within the county in which said adjacent territory is located, at least fifteen days prior to the time when such petition is caused to be circulated, such notice to set forth that an annexation petition is to be circulated, and including an accurate description of the territory involved.'

The petition was filed with the common council of the city of West Allis on September 7, 1948. On November 3, 1948, said council adopted an ordinance annexing all of the territory described in the notice of circulation and in the petition filed with said city.

We have examined the record carefully and concur with the following excerpt from the trial court's decision: 'Despite the challenge that the proceedings of the city of West Allis are fatally defective in several particulars, this court from its examination of the law cannot come to such conclusion.'

The majority opinion of the court in Mueller v. City of Milwaukee, 1949, 254 Wis. 625, 629-631, 37 N.W.2d 464, held that in proceedings for the annexation of territory to it, the city of Milwaukee is not required to comply with the provisions of sec. 62.07(1)(a), Stats., for posting and publishing notices prior to circulation of petitions for annexation, but the city, without complying with such provisions, may proceed under authority of sec. 926-2, Stats.1898, and other sections relating to cities of the first class under under special charter, which were withdrawn from the statutes in 1921 but were continued in force as part of the session laws. Sec. 926-2 provides: 'Territory lying adjacent to any city so incorporated may be annexed to such city in the manner provided by sections 925-17 to 925-21 inclusive; provided, that the petition required by section 925-18 shall be sufficient for the purposes therein mentioned if signed by one-half of the resident electors and the owners of one-half of the real estate within the limits of the territory proposed to be annexed. Territory may also be detached from any such city in the manner prescribed by section 925-21a.'

The petition was filed with the common council of the city of Milwaukee on August 30, 1948. On October 25, 1948, said council adopted an ordinance annexing all of the territory described in the petition filed with said city.

The issue here in which municipality has priority. The trial court found, as a matter of law, that the annexation to the city of Milwaukee was commenced by the filing of the petition on August 30, 1948; that the attempted annexation by the city of West Allis was commenced by the filing of the petition on September 7, 1948; that because the city of Milwaukee's jurisdiction was first invoked, that annexation had precedence and was declared valid in all respects. The trial court relied on Town of Blooming Grove v. City of Madison, 1948, 253 Wis. 215, 220-221, 33 N.W.2d 312, 315. It is stated therein: 'In the present proceeding the city obtained jurisdiction to act immediately upon the filing of the petition with the city clerk. No one questions the right of persons signing the petition to withdraw such signatures prior to the time of the introduction of the resolution. The introduction of the resolution did not give the city any greater jurisdiction than it had at the time the petitions were filed. Under the law the city is required to introduce a resolution of annexation and publish the same. No rights were acquired by any one by the introduction of the resolution. This is merely a procedural step in annexation, the same as publishing and posting notices before circulating petitions. We see no more reason to hold that the right to withdraw a signature ends when the ordinance is introduced at the regular council meeting than there is to say no one can withdraw his signature after the...