Town of Preble, In re

• Decision Date: 06 May 1952
• Citation: 261 Wis. 459,53 N.W.2d 187
• Parties: In re TOWN OF PREBLE. SCHOEN et al. v. CITY OF GREEN BAY.
• Court: Wisconsin Supreme Court

Page 187

53 N.W.2d 187

261 Wis. 459

In re TOWN OF PREBLE.

SCHOEN et al. v. CITY OF GREEN BAY.

Supreme Court of Wisconsin.

May 6, 1952.

On January 3, 1949, a notice of circulation of an annexation petition was posted in eight public places in the Town of Preble, Brown county, Wisconsin, and the notice was published on January 17, 1949, in the Green Bay Press Gazette. On April 12, 1949, a petition for annexation was filed with the clerk of the city of Green Bay bearing 337 signatures, but the petition contained no allegation that the signers represented the required number of electors and property owners of the territory proposed to be annexed to the city to comply with the requirements of sec. 62.07(1), Stats. Neither was any supplementary affidavit filed containing any averment as to the petition having been signed by sufficient electors and property owners to comply with the statute. The territory to be annexed was described in the petition and in the notices which were posted and published; and it included certain parts of said Town of Preble.

The petition for annexation and the proposed ordinance of annexation were presented to the Common Council of the city on April 19, 1949, and the ordinance was advanced to a second reading. Also on said date an ordinance was passed creating a so-called 'Annexation Commission', and the members of such commission were appointed. The annexation petition was referred by the Council to the Annexation Commission on May 4, 1949. On May 17, 1949, a remonstrative petition (also referred to as a 'counter-petition') was filed with the city clerk and on the same day presented to the Council, which bore 511 signatures and alleged that the signers constituted a majority of electors in the territory proposed to be annexed, and were the owners of more than one-third of the taxable property of said territory. Said counter-petition was referred to the Annexation Commission and there was a motion to hold the proposed annexation ordinance over until June 17, 1949. On June 7, 1949, the Annexation Commission made a written report to the Council that 'Because of the greater number of signatures on the counter-petition than were on the original petition requesting annexation, the Commission reluctantly advises the Mayor and Council of the City of Green Bay that it no longer can consider the annexation of the area on the basis of the original petition.' A motion was duly made, seconded and carried at said meeting of June 7th, that this report of the Annexation Commission be adopted.

On October 10, 1949, a petition to incorporate a portion of the Town of Preble embracing 2768.12 acres of land as a village to be named the Village of Preble was filed with the clerk of the circuit court for Brown county. The requirements regarding the making of a survey map of the census, the public examination of the same, and the notice of application to the circuit court for an order of incorporation of the village, as required by secs. 61.02, 61.03, 61.04, and 61.05, Stats., had previously been complied with, and no question is raised as to the sufficiency of such compliance. The territory described in the incorporation petition included part of the same lands described in the annexation petition. Notice had previously been given by posting and publication that said application for incorporation would be made to Hon. E. M. Duquaine, circuit judge of the circuit court for Brown county, on October 10, 1949, and on said day the judge adjourned the hearing until October 31, 1949. When it appeared at the adjourned hearing on October 31st that the City of Green Bay was objecting to the incorporation proceedings on the ground of the existence of a prior pending annexation proceeding, the judge referred the matter to a referee to take testimony and the hearing before the referee commenced on December 12, 1949.

Nothing had transpired with respect to the annexation proceedings subsequent to June 7, 1949, when the Council had adopted the report of the Annexation Commission to the effect that the petition was insufficient because lacking in required signatures, until after October 10, 1949, the original scheduled date of the first court hearing on the incorporation application. Thereafter on October 28 and 31, 1949, three further pro-annexation petitions were filed with the city clerk bearing many additional signatures of electors and property owners of the territory proposed to be annexed. Then at a regular Council meeting on November 1, 1949, a third reading of the annexation ordinance was had and said ordinance was duly adopted.

On August 11, 1950, Judge Duquaine made a memorandum decision in which he held that on October 10, 1949, when the incorporation petition was filed with the court and the first hearing thereon was scheduled, there was pending before the Council of the City of Green Bay an annexation petition 'not void on its face', which was not subject to collateral attack in the incorporation proceedings; and therefore the pending of the annexation proceedings was a...