Village of Brown Deer v. City of Milwaukee

• Decision Date: 03 December 1957
• Citation: 86 N.W.2d 487,2 Wis.2d 441
• Parties: VILLAGE OF BROWN DEER, Appellant and Respondent, v. CITY OF MILWAUKEE et al., Respondents and Appellants, Town of Granville et al., Appellants and Respondents (three notices of appeal).
• Court: Wisconsin Supreme Court

Page 487

86 N.W.2d 487

2 Wis.2d 441

VILLAGE OF BROWN DEER, Appellant and Respondent, v. CITY OF MILWAUKEE et al., Respondents and Appellants,

Town of Granville et al., Appellants and Respondents (three

notices of appeal).

Supreme Court of Wisconsin.

Dec. 3, 1957.

Rehearing Denied Feb. 4, 1958.

Harold H. Fuhrman, Milwaukee, for plaintiff Village of Brown Deer.

Walter J. Mattison, City Attorney, Richard F. Maruszewski, John F. Cook and Harvey G. Odenbrett, Asst. City Attys., Milwaukee, for defendant City of Milwaukee.

William C. Dineen, Miwaukee, for defendants Town of Granville et al.

WINGERT, Justice.

Brown Deer's appeal from order denying summary judgment in its favor on causes of action 7, 8 and 9.

We affirm on this appeal.

These three causes of action assert that the consolidation ordinances, Milwaukee 689 and Granville 106, are invalid, and ask that Milwaukee be enjoined from exercising municipal jurisdiction over the Granville area. Some of the objections to the validity of the consolidation were disposed of on demurrer, when it was held that the entire consolidation was not invalidated by the mere fact that the Brown Deer annexations, if ultimately held valid, would have priority with respect to the annexed territory and thus prevent the consolidation from becoming fully and permanently effective with respect to the annexed portions of the original Granville territory. This court said

'In such a situation we see nothing to prevent the consolidation taking effect to the full extent consistent with the outstanding priorities.' Village of Brown Deer v. City of Milwaukee, 274 Wis. 50, 66, 79 N.W.2d 340, 349.

In that decision we did not pass upon the validity of the consolidation in other respects.

We have some doubt that Brown Deer now has any right to challenge the validity of the consolidation, as thus limited to territory not pre-empted by annexation. See Schatzman v. Town of Greenfield, 273 Wis. 277, 280, 77 N.W.2d 511. Nevertheless we pass that question and deal with the appeal on its merits, since Granville's appeal presents substantially the same objections to the validity of the consolidation, and important public questions are involved.

The motions of both Brown Deer and Granville for summary judgment are based mainly on legal contentions inspired by the decision of this court in Town of Blooming Grove v. City of Madison, 275 Wis. 342, 81 N.W.2d 721, which was handed down after our decision on demurrer in the present case. In Bloming Grove, we held that the constitution does not prohibit the annexation or incorporation of territory within a town in such a way as to divide the unincorporated area of the town into separate parts. In reaching that conclusion we took notice of early legislation and decisions evidencing an understanding, somewhat contemporaneous with the adoption of the constitution, that a town may exist in areas completely separated by city or village territory, and may exercise certain functions within the incorporated areas. We said

'It can be said that town boundaries have at least potential significance notwithstanding incorporation and annexation within them, or stretching across such boundaries. It is clear, however, that most, if not all, powers and duties of town government are restricted to areas outside of incorporated areas.' 275 Wis. at page 347, 81 N.W.2d at page 723.

1. It is now argued that a town is a basic underlying unit of government of a different sort than a city or village, and that in the nature of things it cannot consolidate with a city or village, because only like entities can consolidate. An attempt to consolidate a town with a city is likened to an attempt to merge a partnership with a corporation, which is said to be impossible.

We think, however, that is it not beyond the power of the legislature to authorize a town-city consolidation, and that the legislature has sufficiently authorized that type of combination. Sec. 66.02, Stats., has contained the following provision since 1921:

'Any town, village, or city may be consolidated with a contiguous town, village, or city, by ordinance, passed by a two-thirds vote of all the members of each board or council, fixing the terms of the consolidation and ratified by the electors at a referendum held in each municipality. * * *.'

For thirty-two years before that a substantially similar provision used the terminology of annexation instead of 'consolidation'. Sec. 928, Stats.1889.

We see no ambiguity in the statutory declaration that any town may be consolidated with a contiguous city, nor do we find any provision of the constitution which even suggests that such an authorization is beyond the power of the legislature. In the absence of clear constitutional limitation, the legislature has plenary power to redistribute territory and reallocate governmental functions among governmental subdivisions. Madison Metropolitan Sewerage Dist. v. Committee on Water Pollution, 260 Wis. 229, 242 ff, 50 N.W.2d 424.

Moreover, this court has directly held that a town may be consolidated with a city. In City of Milwaukee v. Sewerage Comm., 268 Wis. 342, 67 N.W.2d 624, we sustained the validity of the consolidation of the town of Lake and the city of Milwaukee, and categorically stated that 'consolidation of a town with a city is authorized by sec. 66.02 Stats.' 268 Wis. at page 345, 67 N.W.2d at page 626. While that case is discounted by appellants on the ground that the points now made were not argued to the court nor discussed in the opinion, the fact remains that the consolidation of town and city was in issue and was held valid.

2. It is contended that the legislative history of sec. 66.02, Stats. shows that only an incorporated town is authorized to consolidate with a city. Chap. 234, Laws 1873, which through amendment and revision became sec. 66.02, provided that 'Any incorporated city, village or town may be annexed to another incorporated city, village, or town, by ordinance passed by a two-thirds vote of all the aldermen or trustees elect of each corporation * * *.' It is pointed out that the territorial legislature created at least two incorporated towns, Platteville and Potosi, and it is said that the incorporated town was thus known to our law as an entity of a different nature than the ordinary town, and that only such incorporated towns were empowered to unite with other units by Chap. 234, Laws 1873. The legislative history further discloses that the word 'incorporated' was dropped in the revision of 1889 (sec. 928, Stats.1889) although the requirement of an ordinance of 'each corporation' was retained at that time and not dropped until the words 'each municipality' were substituted in the revision of 1921 (Chap. 396, Laws 1921, sec. 3), which substituted the term 'consolidation' for 'annexation' and brought sec. 66.02, Stats. to substantially its present form.

We cannot read out of this statutory history any manifestation of intent to bar the ordinary sort of town from consolidating with a city. Ever since 1849, sec. 60.01, Stats. and its forerunners have contained the following language, in substantially its present form:

'Each organized town is a body corporate * * *.' See Chap. 12, sec. 1, Stats.1849; sec. 773, Stats. 1898.

Viewed in the light of that statement from the statute relating to towns generally, we cannot attribute the claimed significance to the use of the words 'incorporated' and 'incorporation' in the forerunners of sec. 66.02. This court has recognized that a town is a body corporate, denominated a quasi-municipal corporation and sometimes referred to as a municipality. City of Milwaukee v. Sewerage Comm., 268 Wis. 342, 349, 67 N.W.2d 624.

Even if the reference in Chap. 234, Laws 1873, to 'any incorporated city, village or town' was meant to relate only to an incorporated town as distinguished from an ordinary town, we think the elimination of the word 'incorporated' in sec. 928, Stats.1889, and the substitution of the word 'municipality' for 'corporation' in sec. 66.02 as revised by Chap. 396, Laws 1921, indicate a legislative intent to extend the consolidation privilege to all towns.

3. Brown Deer points out that only 'contiguous' units can consolidate under sec. 66.02, Stats., and argues that since Milwaukee has heretofore annexed territory in the south portion of the original town of Granville, and since the town continued to exist with its original boundaries for some purposes (as Town of Blooming Grove v. City of Madison, 275 Wis. 342, 81 N.W.2d 721, is said to hold), the city and the town are not now 'contiguous'. It is said that tracts of land having a common boundary are contiguous, but those which overlap are not. We need not go into the refinements of the meaning of 'contiguous', for we are satisfied that where 66.02, Stats. provides that a contiguous town and city may consolidate, the word 'town' is used in the commonly accepted sense as that portion of the original town which remains an operative and actively functioning unit of local government, excluding areas previously annexed or incorporated into cities and villages. 'Town', like other words in the statutes, is normally to be construed according to common and approved usage, sec. 990.01(1), Stats., and we are persuaded that such usage gives the word the connotation of a governmental subdivision operating as a going concern under the form of town government prescribed by Ch. 60, Stats., not including areas previously withdrawn by annexation or incorporation and no longer governed by the town government. The historical evidence that led to the suggestion in Town of Blooming Grove v. City of Madison, 275 Wis. 342, 81 N.W.2d 721, that a town may have some underlying existence to its original boundaries has not affected this common usage, and has no substantial bearing on the meaning of sec. 66.02, Stats., with respect to the requirement of contiguity.

4. Each of the consolidation ordinances contains...