Village of Brown Deer v. City of Milwaukee
| Decision Date | 07 November 1956 |
| Citation | 274 Wis. 50,79 N.W.2d 340 |
| Parties | VILLAGE OF BROWN DEER, a municipal corporation, Respondent-Appellant, Roy H. Sewell, Plaintiff-Respondent, v. CITY OF MILWAUKEE, a municipal corporation, et al., Appellants-Respondents. (Two Notices of Appeal.) |
| Court | Wisconsin Supreme Court |
Walter J. Mattison, City Atty., Richard F. Maruszewski, John F. Cook, Asst. City Attys., Milwaukee, Harry G. Slater, Deputy City Atty., Milwaukee, of counsel, von Briesen & Redmond, Milwaukee, George F. Redmond, Milwaukee, of counsel, for School Dist. and Whitten.
Harold H. Fuhrman, Milwaukee, for Village of Brown Deer.
William C. Dineen, Milwaukee, for Town of Granville.
On the principal questions presented, we conclude that the trial court was right in overruling Milwaukee's demurrers to the amended complaint of Brown Deer and the cross complaint of Sewell, but erred in sustaining Milwaukee's demurrer to the cross complaint of the high school district and Whitten and erred in denying permission to Milwaukee to plead over to certain of the causes of action stated in Brown Deer's amended complaint.
Since the case is here on demurrers, all facts set forth in the amended complaint and cross complaints are taken as true.
1. The first question is whether Brown Deer's Corrigan, Tripoli, Johnson and Brown Deer Park annexations were rendered ineffectual by the ordinances for the consolidation of Granville and Milwaukee, which ordinances were duly approved in the referendum required by statute. We hold that the annexations were not so nullified.
It is the established law of this state that in case of conflict between competing annexations, or between an annexation and a proceeding for the incorporation of a city or village, the proceeding first instituted has precedence, and the later one must yield. In re Incorporation of Village of St. Francis, 208 Wis. 431, 436, 243 N.W. 315; Town of Greenfield v. City of Milwaukee, 259 Wis. 77, 79, 47 N.W.2d 292. Such a proceeding is 'instituted' when the first procedural step required by the governing statute is taken. In the case of an annexation under sec. 62.07 Stats., the first procedural step is the posting of the notice, required by subsec. (1)(a), that an annexation petition is to be circulated. Town of Greenfield v. City of Milwaukee, 259 Wis. 77, 83, 47 N.W.2d 292.
The statutory notices of circulation of the annexation petitions for the Corrigan, Tripoli, Johnson and Brown Deer Park annexations were respectively posted October 4, 1955, January 23, 1956, October 5, 1955 and February 9, 1956; hence those proceedings were instituted on and claimed priority from those dates.
The first procedural step required by statute for consolidation under sec. 66.02 is the adoption of a consolidation ordinance. Milwaukee's consolidation ordinance was adopted March 12, 1956 and that of Granville on March 14, 1956. Neither a letter from the town board of Granville to Milwaukee dated January 20, 1956, asking when a committee would be appointed to meet with the town board for the purpose of negotiating a consolidation agreement, nor a resolution adopted by the city's common council on January 24 directing the committee on judiciary legislation to negotiate with the town for a consolidation agreement and upon completion thereof to introduce an ordinance to effect such consolidation, was a step required by statute and neither amounted to the institution of consolidation proceedings within the priority rule of the cases above cited. Hence the date of institution of the proceedings for the Granville-Milwaukee consolidation, for priority purposes, was March 12, 1956.
It is apparent from the foregoing chronology that under the established rule of priority the four Brown Deer annexations have precedence over the consolidation and are not disturbed thereby, unless consolidations are not governed by the same principles of priority that apply to annexations and incorporations. Milwaukee contends that a consolidation has a preferred status in that respect, and when in conflict with annexations is not subject to the rule of priority applicable to the latter. Legislative intent to accord a superior standing to consolidation is asserted on the basis of various considerations.
The statutory authority for consolidation is found in a single section of the statutes, sec. 66.02 which is as follows:
The authority for annexations is conferred by sec. 62.07 () of which the provisions of greatest present importance are the following:
'(a) A petition therefor shall be presented to the council 1. signed by a majority of the electors in such adjacent territory and by the owners of one-half of the real estate within the limits of the territory proposed to be annexed, or 2. if no electors reside in the said adjacent territory signed by the owners of one-half of taxable property therein according to the last tax roll, or 3. by a majority of the electors and the owners of one-half of the real estate in assessed value; provided, that no petition for annexation shall be valid unless at least 10 days and not more than 20 days before any such petition is caused to be circulated, a notice shall be posted in at least 8 public places in the municipality in which the adajcent territory is located, and a copy of such notice published in a newspaper of general circulation within the county in which said adjacent territory is located, at least 10 days prior to the time when such petition is caused to be circulated, such notice to set forth that an annexation petition is to be circulated, and including an accurate description of the territory involved.
'(6) An ordinance annexing such territory to the ward or wards named therein shall be introduced at a regular or special meeting of the council after the filing of the petition, be published once each week for 4 successive weeks in the official paper and thereafter be adopted at a regular or special meeting by two-thirds of all the members of the council.'
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On careful consideration of these statutes and others that have been cited to us, we are unable to discern any legislative intent to give consolidation a preferred status over annexation or incorporation, or to exempt consolidation from the rule of priority applicable to those other methods of transferring territory from one jurisdiction to another. On the contrary, the last sentence of the consolidation statute, sec. 66.02, is as follows:
'Consolidation shall not affect the pre-existing rights or liabilities of any municipality and actions thereon may be commenced or completed as though no consolidation had been effected.'
Thus the legislature has industriously recognized and preserved the pre-existing rights not only of the consolidated municipalities but of any municipality. Applied to the present case, the quoted provision is broad enough to recognize and preserve the pre-existing rights obtained by Brown Deer through the institution of annexation proceedings.
We find nothing in the statutory history of the various pertinent statutes which throws any different light on their interpretation with respect to the matter of priority.
It is argued that a preferred status for consolidations may be distilled from the fact that sec. 66.02 requires action by the governing bodies of two municipalities and ratification by referendum in each, and that consolidation is immediately effective upon such ratification by the electors, while annexation requires action by only one municipality, and a referendum is not mandatory, and the annexation does not become effective to attach the annexed territory until 90 days after passage of the ordinance.
We cannot agree that these differences imply a superior status for consolidation. Presumably sec. 66.02 requires action by two municipalities because one of them will lose its separate existence. In annexation, action is required by a majority of the electors and by the owners of half of the real estate in the territory to be annexed, they being the persons most directly affected. The 90 day waiting period applicable to annexation does not imply inferiority,...
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