Town of Nasewaupee v. City of Sturgeon Bay, 75-2
| Decision Date | 30 March 1977 |
| Docket Number | No. 75-2,75-2 |
| Citation | 77 Wis.2d 110,251 N.W.2d 845 |
| Parties | TOWN OF NASEWAUPEE, a body corporate, Appellant, v. The CITY OF STURGEON BAY, a Municipal Corporation, and Eugene Jacobs, Respondents. |
| Court | Wisconsin Supreme Court |
James C. Pankratz, Sturgeon Bay, on brief for appellant.
Sven V. Kirkegaard, City Atty., on brief for respondent City of Sturgeon Bay.
Johnson, Herlache, Johnson & Johnson, Sturgeon Bay, on brief for Eugene Jacobs.
This appeal is from a judgment which approved the annexation of certain lands in the Town of Nasewaupee to the City of Sturgeon Bay. The principal question presented on this appeal is whether, in view of a sixty-day statute of limitations, the action by the Town contesting the annexation was timely brought. The trial court found that no effective action was taken by the town board within sixty days to authorize the commencement of the action and that a subsequent meeting of the town board, which purported to ratify the acts of an attorney in bringing an action on behalf of the town board, was a nullity. Accordingly, the trial judge dismissed the plaintiff's complaint.
Additionally, the Town, in its attack upon the annexation ordinance, contended that the City had failed to strictly comply with filing and notice requirements of the statute, and that, therefore, the annexation ordinance was void.
The trial judge, in addition to dismissing the Town's complaint because it was not timely authorized and brought, found the ordinance and the notices in substantial compliance with the statutes and therefore held the annexation valid. However, the latter question need not be addressed on this appeal, for sec. 66.021(10), Stats., provides that an annexation is conclusively valid if an action contesting it is not timely brought.
We conclude that no action was taken by the town board to authorize an action to contest the annexation within sixty days of the passage of the annexation ordinance. The ratification of the unauthorized commencement of a lawsuit came after the period of limitations had run, and hence the town board was wholly without power to commence an action or to ratify a prior but unauthorized action. We affirm the judgment of the circuit court.
The annexation in this case was initiated under the procedure of sec. 66.021(12), Stats. That procedure is applicable to direct annexations when all of the electors and all of the owners of the real property sought to be annexed petition a city or village for the annexation of the territory. In the instant case the property in question was owned by Eugene Jacobs and his wife, and they initiated the proceedings by petition to the common council of the City of Sturgeon Bay.
The ordinance annexing the Jacobs property to the City of Sturgeon Bay was adopted by the common council of the City on October 17, 1972. In accordance with the terms of sec. 66.021(7)(d), Stats., the annexation was effective on the date of its enactment, October 17, 1972.
Under sec. 66.029, Stats., a town board may institute an action for the purpose of testing the validity of any proceedings "whereby territory is attached to or detached from any town." Sec. 60.29(31) authorizes a town board to test the validity of any ordinance which detaches territory from the town and attaches it to a city. Sec. 60.29(4) directs that a town board is "empowered and required: . . . To have charge of all actions to which the town is a party."
The sections of the statute referred to above make it clear that the authorization to commence an action must stem from the action of a town board officially convened and acting as a board. Moreover, the time within which the town board may act is strictly limited. Sec. 66.021(10)(a), Stats., provides:
The record demonstrates that an action, purportedly on behalf of the Town of Nasewaupee, contesting the annexation of the Jacobs property, was commenced on December 16, 1972. December 16 was the sixtieth day following the effective date of the annexation and, if authorized, the service of the summons constituted a timely commencement of the action.
After initially demurring to the plaintiff's cause of action, the City of Sturgeon Bay answered the complaint and asked for a dismissal on the merits. The City's answer did not raise any question in respect to the timeliness of the commencement of the action. It was not until the presentation of the Town's case during the course of trial that it became apparent that there was a substantial question in respect to whether the commencement of the action had been authorized by the town board.
At trial, the town clerk of the Town of Nasewaupee read into the record the following summary of the November 16, 1972, meeting of the Nasewaupee town board:
"Chairman Hoffman agreed to contact the D.A. and or James Pankratz to seek out a good attorney knowledgeable of annexation laws and try to repossess or hold up the proceedings so they could not finalize this annexation then to notify Cindy Lawrence of the results of such contacts."
He also read the minutes of the December 5, 1972, meeting of the town board, which stated:
"(Chairman Hoffman) also reported that he had contacted Atty James Pankratz on the annexation situation and that Atty Pankratz related he would attempt to work something out and would forward correspondence to both Chairman Hoffman and Andrew Lawrence informing them of the progress."
He additionally read the minutes of the town board meeting of October 30, 1973, which meeting occurred over a year after the effective date of Sturgeon's Bay annexation ordinance. Those October 30, 1973, minutes stated:
"The decision to fight the annexation proceedings was an oral decision by the then town board outside of a town board meeting and was never duly recorded in the minutes of any meeting, therefore, John A. Weckler, Jr., made a motion that the present town board ratify the previous action of the past town board in hiring and retaining an attorney (James Pankratz) on or about the first day of December 1972 to contest the annexation proceedings of Mr. and Mrs. Eugene Jacobs to the City of Sturgeon Bay and to pay all costs and fees involved in the necessary legal action therefore, Doug Pfister seconded, motion carried." (Emphasis supplied.)
Following the receipt of these minutes in evidence and at the completion of the Town's case, counsel for the City of Sturgeon Bay moved to dismiss the summons and complaint because the testimony of the plaintiff revealed that the town board had not authorized the commencement of the lawsuit and because the attempted ratification came too late. The trial judge made the specific finding of fact:
"The Court finds that the Town Board of the Town of Nasewaupee did not, on or before December 16, 1972, decide or resolve to institute...
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