Town of Madison v. City of Madison

• Citation: 269 Wis. 609,70 N.W.2d 249
• Parties: TOWN OF MADISON et al., Appellants, v. CITY OF MADISON, etc., Respondent.
• Decision Date: 03 May 1955
• Court: United States State Supreme Court of Wisconsin

Page 249

70 N.W.2d 249

269 Wis. 609

TOWN OF MADISON et al., Appellants, v. CITY OF MADISON, etc., Respondent.

Supreme Court of Wisconsin.

May 3, 1955.

Risser & Risser, Madison, for appellants.

Harold E. Hanson, City Atty., Madison, for respondent.

Thomas, Orr, Isaksen & Werner, Leon E. Isaksen, Trayton L. Lathrop, Madison, amici curiae.

STEINLE, Justice.

There is no bill of exceptions in this case, and hence we can consider only whether the pleadings and findings sustain the judgment. Fidelity & Deposit Co. v. Madison, 1930, 202 Wis. 271, 232 N.W. 525.

The court determined that there had been compliance with annexation procedure as required in sec. 62.07(1)(a), Stats. in regard to petition and posting of notices. There is no challenge here as to such finding.

The court found that the annexation ordinance was introduced at a regular meeting of the Common Council of the city of Madison on January 14, 1954. The ordinance was published for four successive weeks, the last publication having been made on February 5, 1954. A notice was included in the publication of the ordinance which read:

'Legal Notice

'Notice is hereby given, that the following ordinance was introduced at the regular meeting of the Common Council of the city of Madison on Thursday, January 14, 1954, at 7:30 p. m., and will be acted on by such Common Council at its next regular meeting following publication hereof as required by law.'

The ordinance was adopted at a regular meeting of the Common Council on March 11, 1954. Previous thereto, regular meetings of the Council were held on February 11 and February 25. Each meeting of the Common Council was concluded with an adjournment. The ordinance had been referred to the City Plan Commission on January 14, 1954. That body investigated the matter and made its report and recommendation favoring the adoption of the ordinance on March 11, 1954. A tract of land, 100 by approximately 250 feet on Lake Monona, owned and used as a park by the town of Blooming Grove was included in the annexed area. The respective town boards adopted resolutions directing the institution of legal proceedings on behalf of the towns, but no action in such regard was taken at any town meeting of the towns involved.

Amongst its conclusions of law, the court determined that it had acquired jurisdiction over the action and the parties; that the statement accompanying the publication of the ordinance, '* * * will be acted upon by said Common Council at its next regular meeting following publication hereof' was surplusage, and was not misleading; that the publication of the ordinance is directed to and is the concern only of the inhabitants of the city, and that the towns have no legal right to challenge the validity thereof; that the inclusion of the land used as a park does not invalidate the annexation proceeding; that the annexation was in all respects valid.

Appellants base the appeal upon three grounds: (1) That the court erred in holding that the towns had no legal right to challenge the validity of the published notice; (2) that the ordinance is void for improper notice because the city integrated within the statutory publication vital information which was not accurate, and (3) that the city does not have the power to enact a valid ordinance annexing land owned by the town.

Amici curiae contend that there is no justiciable controversy in this action over which the court has jurisdiction, and that this court is duty bound to raise the jurisdictional question, even though the same has not been raised by the parties. It is their position that the plaintiff towns have no interest in the cause of action and hence are not proper parties. They challenge the validity of sec. 66.029, Stats.

The respondent city takes the position that a town board may not bring or authorize the bringing of an action to test the validity of an annexation ordinance adopted by a city in the absence of a vote of the electors of such town taken at a town meeting. The city maintains that since the complaint does not show that the institution of the action was authorized at a town meeting, a cause of action is not stated.

Sec. 66.029, Stats., 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 be interpleaded in any such action.' (Italics supplied.)

This statute was enacted in 1933 and has been in effect continuously since that time. It appears that its validity has not heretofore been challenged in any case presented in this court.

Previous to the enanctment of sec. 66.029, Stats., this court held that neither a town nor its citizens other than those residing in or owning property within the limits of the territory to be annexed, had any interest in the alteration of the town's boundaries. In re Village of Mosinee, 1922, 177 Wis. 74, 187 N.W. 688; In re Village of Chenequa, 1928, 197 Wis. 163, 221 N.W. 856; State ex rel. Zilisch v. Auer, 1928, 197 Wis. 284, 221 N.W. 860, 223 N.W. 123.

In sec. 66.029, Stats., the legislature declares that a town is an interested party. Amici curiae argue that the attempt on the part of the legislature to legislate 'interest' is clearly of no effect.

The language of the statute is plain and unambiguous. The cardinal principle of statutory construction is to save and not to destroy. As said in 82 C.J.S., Statutes, § 362, pp. 794, 795 'All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it, * * * they are therefore to be construed in connection with and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, that is, they are to be construed with a reference to the whole system of law of which they form a part. So the meaning and effect of statutes are to be determined in connection, not only with the common law, * * * and the constitution, but also with reference to other statutes * * * and the decisions of the courts.' The question is whether the provision in sec. 66.029, Stats., declaring that the town is an interested party in annexation or consolidation proceedings and authorizing it to test the validity of such proceedings, is completely out of harmony with the holding by this court that a town has no interest in the alteration of its boundaries. We are of the opinion that the statutory provision is not contrary to the principle heretofore laid down by ths court that a town has no interest in the alteration of its boundaries.

A municipal corporation has no power to extend its boundaries otherwise than as provided for by legislative enactment or constitutional provision. Such power may be validly delegated to municipal corporation by the legislature, and when so conferred must be exercised in strict accord with the statute conferring it. 37 Am.Jur., Municipal Corporation, pp. 640, 641, sec. 24. The legislature shall establish but one system of town and county government which shall be nearly as uniform as practicable, art. IV, sec. 23, Wisconsin constitution. By provisions particularly of sec. 62.07, Stats., and 66.025, Stats., (annexation); and sec. 66.02, Stats., (consolidation), the legislature has prescribed a uniform method whereby territory of a town may become attached to a city.

A town has no right to determine the extent of territory that may be detached from it in valid proceedings under the statute. It is manifest, however, that a town's governmental affairs are affected and require adjustment when territory is taken from it. Apparently, in recognition of this situation, the legislature by enacting sec. 66.029, Stats., has provided that a town shall be permitted to protect its interests against an invalid proceeding brought to detach its territory. It cannot be held that such legislation is unreasonable. While, as heretofore pointed out, the legislature may delegate to a municipal corporation the power to extend its boundaries, such power when conferred, must be exercised in strict accord with the statute conferring it. Sec. 66.029, Stats., does not confer upon towns a right to prevent detachment of the town's territory when the proceedings for such purpose are in accordance with statutory requirements. This enactment merely grants to towns the right to compel and enforce a strict compliance with the required procedure fixed by the legislature with regard to detachment of their territory. It appears that this legislation is in the interest of good order. Should a municipal corporation which is authorized by statute to annex territory of a town, attempt such attachment to it by invalid means, it is not difficult to appreciate that such action could seriously hamper and prejudice the planning and operation of the governmental affairs of the town. In such circumstances the town may well be confronted with uncertainty as to whether the area sought to be detached from the town might not be returned to it because of fatal defect in the proceedings. Certainly, to avoid any such confusion, the town has an interest in the proceedings. By means of this statute a town can protect such interest. It cannot be said that the enactment is outside the legislature's scope of authority.

Sec. 60.18(2), Stats., provides that the qualified electors of the town have the power to direct the institution and defense of actions in which the town is interested. Sec. 66.029 authorizes the town board to institute, maintain, or defend an action brought to test the validity of proceedings whereby territory is detached from the town. In conferring power upon the town board to initiate or defend action to test the validity of the proceedings brought for the purpose of detaching territory from the town, the legislature clearly acted within the realm of its authority. Manifestly, by providing that the...