Town of Wilson v. City of Sheboygan

• Decision Date: 10 January 1939
• Citation: 283 N.W. 312,230 Wis. 483
• Parties: TOWN OF WILSON v. CITY OF SHEBOYGAN.
• Court: Wisconsin Supreme Court

230 Wis. 483

283 N.W. 312

TOWN OF WILSON

v.CITY OF SHEBOYGAN.^*

Supreme Court of Wisconsin.

Jan. 10, 1939.

Appeal from a judgment of the Circuit Court for Sheboygan County; Henry Graass, Judge.

Affirmed.

Action by the Town of Wilson against the City of Sheboygan to contest the validity of proceedings to annex territory in the town to the city. From a judgment dismissing the complaint entered June 13, 1938, the town appeals.

The territory attached consists of 63.39 acres in the Town of Sheboygan which lay contiguous to the city of Sheboygan, and 70.784 acres in the Town of Wilson lying south of the 63.39 acres in the Town of Sheboygan. Of the 70.784 acres 39.726 acres are the property of the Wisconsin Power & Light Company on which a power plant is located of the approximate value of $5,000,000. The material facts will be stated in the opinion in connection with the discussion of the points of law to which they relate.

Eberlein & McCarthy, of Shawano, and Patrick J. McCaffrey, of Milwaukee, for appellant.

Edward C. Schmidt, City Atty., and George R. Currie, Sp. Counsel, both of Sheboygan, for respondent.

FOWLER, Justice.

The plaintiff seeks to have the annexation proceedings referred to in the preceding statement of facts declared void in order that it may continue to receive from the state the portion of the tax laid by the state upon the power plant of the Wisconsin Power & Light Company, which under sec. 76.28, Stats., is paid over to the governmental unit in which the plant is situated. The defendant seeks to sustain the proceedings in order that it may receive that portion of the tax.

The plaintiff is met at the outset by the contention of the defendant that it cannot contest the proceedings because it did not commence the action within the period limited by statute for attack thereon. The final proceeding in annexation of territory to a city is the passage of an ordinance of annexation by the city council. Sec. 62.07(1) (b), Stats. Sec. 62.07(3) provides that the validity of annexation proceedings cannot be attacked unless suit therefor be commenced before the ordinance of annexation becomes operative, which is within ninety days from its passage. The instant suit was not commenced until long after that period had expired. A similar statute exists in respect to attacks upon proceedings for the laying out of roads by town boards. Sec. 80.17, Stats. The latest decisions upon the two types of proceedings under these statutes are not in accord. The case of Roehrborn v. Ladysmith, 175 Wis. 394, 185 N.W. 170, rules that an ordinance to annex territory to a city adopted within thirty days after introduction thereof is absolutely void, although not questioned within the time prescribed by sec. 62.07(3), Stats. It is conceded that the instant ordinance was adopted within the thirty day period prescribed by that statute. This was in accord with Herman v. Oconto, 100 Wis. 391, 76 N.W. 364. It had been held in Lutien v. Kewaunee, 143 Wis. 242, 126 N.W. 662, 127 N.W. 942, of a publication of an annexation ordinance after passage instead of before that [page 664]: “But ninety days after such ordinance is adopted the time for calling it in question expires whether publication [after passage] is defective or not, and even if no publication [after passage] has taken place.”

This rule was held in the Ladysmith Case, supra, 185 N.W. 171, not to apply to a publication before passage, and that “a statute limiting the time within which the validity of the ordinance may be called in question cannot operate to give validity to a proceeding which is void.” The rule of the Ladysmith Case was applied in the later case of Behling v. Milwaukee, 190 Wis. 643, 209 N.W. 762. The plaintiff town contends that the Ladysmith Case rules the instant case in its favor and this is correct unless the later case of State ex rel. Thompson v. Eggen, 206 Wis. 651, 238 N.W. 404, 240 N.W. 839, overrules it.

The ruling in the Eggen Case was that the filing of a valid petition with a town board to lay out a road conferred on the town board jurisdiction to act, and departure from statutory procedure thereafter did not operate to void an order laying out the road unless attacked within three months.

The defendant contends that the Ladysmith Case is overruled by the Eggen Case, wherein it is said, page 651, 238 N. W. page 406: “There may be some difficulty in distinguishing the question there [in the Ladysmith Case] involved from the one here considered. But in so far [if at all] as that case conflicts with the conclusion here reached it must be deemed overruled.”

[1]Counsel for plaintiff contend that the Eggen Case is not in point because no notice is prerequisite to the filing of a petition with the town board for laying out of a road, while notice of circulation of a petition for annexation is prerequisite to the filing of a petition with the city council for annexation of territory to a city. We perceive no difference in the two situations providing the petition filed in the annexation proceeding is valid. If the filing of a valid petition in the road proceedings validates the final act of the process unless the proceedings be questioned within ninety days, however much they may depart thereafter from statutory directions, we perceive no reason why failure to call in question annexation proceedings within the statutory period for attack does not cure departure from statutory directions in proceedings subsequent to the filing of a valid petition in the annexation proceedings. The basis of the ruling in the Eggen Case is that the filing of a valid petition gives the town board jurisdiction to err, and if the filing of a valid petition gives the town board jurisdiction to err in its subsequent proceedings in road proceedings, we see no reason why a valid petition in annexation proceedings does not give a city council jurisdiction to err in proceedings in annexation taken subsequent to the filing of the petition.

[2][3]It is contended by plaintiff that the rule of the Eggen Case does not apply to this case because the statute on which it is based provides that action shall be commenced within ninety days from the time the ordinance of annexation takes effect, and that in the instant case the taking effect of the ordinance was suspended by the filing of a petition for a referendum to the electorate of the city.

Sec. 62.07, Stats., is headed “Annexation and detachment of territory.” Immediately after the heading follows: “(1) Annexation procedure” including subsecs. (a) and (b). Then follows: “(2) Detachment procedure” including three paragraphs (a) (b) and (c). Paragraph (c) reads as follows: “(c) The council may, or if a petition signed by five per cent of the electors of the city demanding a referendum thereon be presented to the council within ninety days after the passage of the ordinance, the council shall cause the question to be submitted to the electors of the city at the next ensuing city election, and the ordinance shall not take effect nor be in force unless a majority of the electors voting thereon shall approve the same.”

A petition signed by five per cent. of the electors of the city was filed with the city council on August 2, 1936, the ninetieth day after the passage of the ordinance of annexation, and an ordinance for annexation does not take effect until ninety days after its passage. Sec. 62.07(3), Stats. This petition was designated as filed under sec. 62.07(c), (2) being omitted from the designation. But as appears from the above paragraph (2) (c) applies only to detachment proceedings. There is no provision for a referendum in attachment proceedings. This petition was therefore ineffectual unless it can be sustained under the general referendum statute, sec. 10.43, headed “Direct legislation” as plaintiff contends it may be.

But sec. 10.43, Stats., provides that a petition signed by fifteen per cent. of the electors of a city requesting that a proposed ordinance annexed be either adopted without alteration by the council or be referred without alteration to a vote of the electors. Assuming the petition was signed by fifteen per cent. of the electorate, this section has no application to an ordinance already passed. Thus the filing of the petition for a referendum was entirely ineffectual for want of any statutory authority for the filing of it or for holding any referendum in the situation involved.

But it is to be noted, even if there be no distinguishable difference between the situations involved in the Eggen and the Ladysmith Cases, supra, that the rule of the Eggen Case is limited to cases where the petition filed is valid. The filing of a valid petition gives jurisdiction to proceed but the filing of an invalid one does not. The plaintiff claims the petition filed with the council in the instant case was invalid.

Sec. 62.07(1) (a), Stats., provides that notices of the circulation of a petition for annexation of territory to a city shall be posted in eight public places within the municipality in which the territory to be attached lies not less than thirty or more than forty-five days from the time of posting, and that if such posting is not done the petition is invalid. The notices in the instant case were posted on telephone poles within the public highway and the plaintiff contends that one of the notices posted in the Town of Wilson was not within a public highway, and that some of the other poles on which the notices in said town were posted, although within the public highway, were in such remote places and so inaccessible that they did not constitute public places.

[4][5]As to the telephone pole claimed by plaintiff not to be in a public highway, the evidence as to its location is contradictory. The evidence on the point was given by the deputy sheriff who postedthe notice. He first stated that the pole was not in the public highway, and afterwards stated that it was. He was right one time or the...