Town of Mt. Pleasant, Etc. v. City of Racine, Etc.
| Citation | 28 Wis.2d 519,137 N.W.2d 656 |
| Parties | TOWN OF MT. PLEASANT, ETC., an unincorporated municipality, Respondent, v. CITY OF RACINE, ETC., a municipal corporation, Appellant. (2 notices of appeal) |
| Decision Date | 02 November 1965 |
| Court | Wisconsin Supreme Court |
Jack Harvey, City Atty., Racine, for appellant.
Benson, Butchart & Haley, Racine, for respondent.
Two issues are presented on this appeal:
First, was the annexation petition invalid because not signed by the president of Racine Properties, Inc.?
Second, is the annexation void because the boundary lines were drawn in such a way as to eliminate electors from the area proposed for annexation?
Validity of Petition.
The board of directors of Racine Properties, Inc., which owned over half of the land in terms of area and assessed value, adopted the following resolution:
'Be it further Resolved, that George P. Demos, as President of the corporation, be and he hereby is authorized to execute such papers and documents on behalf of the corporation as are necessary and required to accomplish such annexation and that Craig T. Griffin, as Secretary of the corporation, be and he hereby is authorized to countersign such papers and documents on behalf of the corporation.'
Relying on Village of Brown Deer v. City of Milwaukee, 3 respondent contends that the petition was invalid because it was signed only by the secretary. In Brown Deer, the president of the company which desired to annex its land to the village of Brown Deer, signed the petition without having obtained either formal or informal authorization from the board of directors. This court held that a third party challenging the annexation could raise the question of the officer's authority to sign the petition. In the present case it is undisputed that the directors had authorized the officers to act. Therefore, the most that Brown Deer does is give respondent the standing to attack the petition on the ground that both the president and secretary were required to sign the petition.
The resolution specifies that the signatures of both the president and secretary (or at the very least, the president) were required on any papers concerning the annexation. This is because the secretary was authorized to 'countersign' any documents, and countersigning, by definition, is the adding of 'one's signature * * * after another's to attest authenticity.' 4 Although the petition was not signed in strict conformity with the resolution, the trial court concluded that this defect should not operate to vitiate the petition since the signing was merely a ministerial act to be done pursuant to the actual pre-existing authorization. We agree.
Validity of Annexation.
Annexation procedures are purely statutory. 5 This direct annexation (as distinguished from one by referendum) was proposed under the provisions of sec. 66.021, Stats., as an annexation within a populous county (sec. 66.021(11)(a), Stats.) and not involving one square mile or more (sec. 66.021 (11)(b), Stats.). There is a common law presumption of validity which attaches to an annexation ordinance that remains until overcome by proof produced by the party attacking it. 6
Assuming that the prescribed procedures have been followed in the adoption of an annexation ordinance, it may be attacked in the courts on the ground that it is 'arbitrary and capricious or is an abuse of discretion.' 7
In the instant case the Town of Mt. Pleasant attacks the ordinance complaining that it is arbitrary and capricious and unreasonable in the way the boundary lines are drawn so 'as to arbitrarily eliminate electors from participating in the annexation proceedings and without regard for city needs and purposes.' Respondent does not attack the ordinance on the ground that the territory lacks sufficient contiguity as was done in the first Mt. Pleasant v. Racine Case. Apparently respondent concedes that the addition of more land at the junction with the city cures that defect.
Following the taking of testimony, the trial court found:
'in segmenting jurisdiction along the Meacham Road, ten homes containing twenty electors were excluded from the area annexed; the excluded areas are bounded on three sides by the City of Racine, and they could have been included and given City services, and no municipal reason was advanced for their not being included in the annexed territory; * * *.'
and
'that to adopt a rational and natural boundary line along the Meacham Road it would have been necessary to include the said twenty electors; that the boundary lines were gerrymandered so as to exclude at least twenty electors; that the said boundary lines are not reasonable or realistic, and create crazyquilt boundaries which are difficult for both the City of Racine and the Town of Mt. Pleasant to administer; that the boundary lines transcend into the realm of arbitrary and capricious action; that the annexation of the annexed area is an unreasonable annexation.'
As a conclusion of law the court stated:
'That a rational and natural boundary line along Meacham Road would have included twenty electors which were not included in the annexation; that the annexation boundary lines were gerrymandered so as to exclude at least twenty electors; that the boundary lines are not reasonable or realistic and result in crazy-quilt boundaries difficult for both City and Town to administer; that the boundary lines transcend into the realm of arbitrary and capricious action; and that the annexed area does not meet the test of reason; and that said annexation is void.'
Thus the court centered its attention on the boundary line along Meachem road. The record discloses, as shown on the accompanying map, that parts of the land both east and west of Meachem road were to remain in the Town of Mt. Pleasant (G, H, I), while three interspersed areas (C, F and J) were incorporated in the proposed territory. Proceeding along Meachem road from north to south this Left three parcels of land abutting on Meachem road in the township, on which parcels 10 different residence were located containing a total of 20 electors. The record reveals no proof of the reason why these residences were not included in the proposed annexation. Not one of the 20 excluded electors testified. The town asserted, and the trial court determined that the petitioners left out these areas and excluded at least 20 electors from the annexation proceedings, although there was no municipal reason for not including them in the annexed territory. In effect, the trial court shifted the burden of proof to the city once the annexation was attacked as being unreasonable. Once the annexation was questioned the city was expected to prove that there was a sound municipal reason for the exclusion of each and every piece of property not covered by the annexation. This was error. Although an annexation ordinance may be attacked in the courts under the rule of reason because it is alleged to be arbitrary and capricious, the party taking this position has the burden of proving that, in fact, the ordinance is arbitrary and capricious. 8 There is nothing in the record to sustain the trial court's finding that the annexation was arbitrary and capricious or unreasonable. Although there was proof that the 10 residences existed and that there were at least 20 electors in those excluded residences, there was no evidence indicating in any way that these electors had been approached by either the petitioners or the city or the objectors as to their views on the proposed annexation and the rendition of municipal services. There was the bare assertion that the lines had been drawn arbitrarily to exclude these electors. On this state of the record we have no hesitation in concluding that there is no evidence to support the trial court's disputed findings.
Under the 1957 and 1959 comprehensive legislative rewrite of the annexation laws, 9 court review of annexation is contemplated and the rule of reason applies to court review of proposed annexations. 10 The annexation procedures provide for the sending of a notice of the proposed annexation to the state director of the planning function in the department of resource development. 11 Under sec. 66.021(11)(a), Stats., if, as here, an annexation is proposed of less than one square mile in a metropolitan community, that officer is to send a report to the annexing municipality if he finds that the annexation 'is against the public interest,' as defined by the statute. 12 Although he was given the required notice of the proposed second Georgetown annexation, the director did not send a report stating that the annexation was against the public interest. Therefore, it may be assumed that he concluded that the annexation was not against the public interest and that the Racine city council took the...
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