Zweifel v. City of Milwaukee

• Decision Date: 11 December 1924
• Citation: Zweifel v. City of Milwaukee, 185 Wis. 625, 201 N.W. 385 (Wis. 1924)
• Parties: ZWEIFEL v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

185 Wis. 625

201 N.W. 385

ZWEIFEL

v.CITY OF MILWAUKEE.^a1

Supreme Court of Wisconsin.

Dec. 9, 1924.

Dissenting Opinion Dec. 11, 1924.

Appeal from Circuit Court, Milwaukee County; Gustav G. Gehrz, Judge.

Action by Fred J. Zweifel against the City of Milwaukee.Judgment for defendant, and plaintiff appeals.Affirmed.

Eschweiler and Jones, JJ., dissenting.W. O. Meilahn, of Milwaukee (G. J. Davelaar, of Milwaukee, of counsel), for appellant.

John M. Niven, City Atty., and Mark A. Kline, Asst. City Atty., both of Milwaukee, for respondent.

OWEN, J.

It will be a sufficient statement of facts to say that this is an action in equity, brought to test the validity of a certain ordinance adopted by the city council of the city of Milwaukee annexing certain territory to said city.The objections urged against the validity of the ordinance will appear as we proceed.The plaintiff is a taxpayer within the territory affected by the ordinance, and brings this action in behalf of himself and all other resident electors and taxpayers within the annexed territory, under the authority of Lutien v. Kewaunee, 143 Wis. 242, 126 N. W. 662, 127 N. W. 942.The case comes here upon an appeal by the plaintiff from an order overruling a demurrer to the answer.

[1] The principal question in dispute is whether the city of Milwaukee, being a city organized under special charter, may proceed under the provisions of section 962--2, Stats., providing for the annexation of territory, without first adopting the provisions of sections 925--17 to 925--21, inclusive, Stats., being a part of the general city charter law.The city proceeded to annex the territory in the manner provided by sections 925--18 to 925--21, without adopting said provisions as a part of its charter.There is no question but what the proceedings were regular if the city had power to act under such provisions.That is the first question with which we are concerned.

Chapter 40b of the Revised Statutes of 1898 is a special chapter relating to cities under special charters and consists of various provisions conferring municipal power upon such cities in addition to the powers conferred upon them by their respective special charters.The very first sentence of the first section of that chapter provides that “all cities incorporated by special act shall have the powers, privileges, and franchises, and be subject to the duties and liabilities in this chapter provided for.”Section 926--1, which is to be found in said chapter 40b, provides that:

“For the exercise of corporate power and other appropriate purposes, and for convenience of legislation, all cities incorporated under special charters shall be divided into classes as follows: Cities containing a population of 150,000 or over shall constitute the first class; cities containing a population of 40,000 or over and under 150,000, the second class; cities containing 10,000 or over and under 40,000, the third class; cities containing less than 10,000, the fourth class.The population as affecting the class to which any such city shall belong shall be determined by the last national or state census.”

This classification of cities organized under special charter is in strict conformity to the classification of cities organized under the general charter law.

Section 926--2, which immediately follows the section above quoted, provides that:

“Territory lying adjacent to any city so incorporated [special charter] may be annexed to such city in the manner provided by sections 925--17 to 925--21 inclusive; provided, that the petition required by section 925--18 shall be sufficient for the purposes therein mentioned if signed by one-half of the resident electors and the owners of one-half of the real estate within the limits of the territory proposed to be annexed.Territory may also be detached from any such city in the manner prescribed by section 925--21a.”

Section 925--17 is a part of the general charter law and provides that.

“Territory lying adjacent to any city organized under the provisions of this chapter or adjacent to any city organized under a special charter which, by ordinance, has declared such city to be of a certain class according to the provisions of section 925--1, and has adopted, in the manner provided by section 925--4,sections 925--17 to 925--21 inclusive, may be annexed to such city in the manner hereinafter set forth.”

The manner of annexation is set forth in sections 925--18 to 925--21, inclusive.As already stated, the manner thus prescribed was followed by the city in this instance.The question is whether before the city could proceed under sections 925--18 to 925--21, inclusive, it was necessary for it, in accordance with the provisions of section 925--17, to declare by ordinance that the city of Milwaukee is of a certain class according to the provisions of section 925--1, and adopt, in the manner provided by section 925--4,sections 925--17 to 925--21, inclusive, and thus bring it within the express provisions of section 925--17.Much space in the briefs of counsel is devoted to a consideration of the legislation bearing upon this question prior to the revision of 1898.A brief review thereof is not inappropriate and may be somewhat helpful in arriving at a solution of the question.

The general city charter law was enacted as chapter 326 of the laws of 1889.As enacted it contained practically the same provisions that are now embodied in sections 925--17 to 925--21 relating to the annexation of territory.The constitutional amendment which prohibited special legislation for incorporating any city, or of amending the charter thereof (paragraph 9, § 31, art. 4, Wis. Const.), was adopted in November, 1892.After the adoption of that amendmentthe Legislature was prohibited from enacting special laws annexing territory to cities, whether organized under general or special charter.Cities organized under general charter could annex territory in the manner therein prescribed.There was no way, however, by which territory might be annexed to cities organized under special charter.The first legislative attention given to this matter appears to have been the enactment of chapter 214 of the Laws of 1893.As so enacted, its provisions were identical with the provisions of section 926--2, already quoted herein, with the exception of the last sentence.At that time the present section 925--17 simply provided that “territory lying adjacent to any city organized under the provisions of this act may be annexed to such city in the manner hereinafter set forth.”At the time of the enactment of said chapter 214 of the Laws of 1893, the law did not provide that a city organized under special charter might adopt a portion of the general city charter law, although it did provide for the adoption by such cities of the entire law.The provision authorizing cities organized under special charter to adopt individual parts of the general city charter law was first enacted as section 72 of chapter 312 of the Laws of 1893, but this was after the enactment of chapter 214 of the Laws of 1893.

It will therefore be seen that chapter 214 of the Laws of 1893 simply authorized cities organized under special charter to annex territory in the manner provided in the general charter law, and this continued to be the law until chapter 214 of the Laws of 1893 was repealed by chapter 245 of the Laws of 1895.That chapter amended what is now section 925--18 in certain respects immaterial here, and expressly repealed chapter 214 of the Laws of 1893.The city attorney argues that the repeal of said chapter 214 of the Laws of 1893 was evidently a mistake on the part of the Legislature.But whether it was or not, it was effectually repealed nevertheless, and it is bootless for us to inquire whether the action was the result of a mistake.We do not think it was, because at that time cities organized under a special charter were authorized to adopt the provisions of the general charter law relating to the annexation of territory, so that the Legislature might well have considered that there was ample statutory provision to enable cities organized under special charter to enlarge their boundaries.

The next legislative action material here was the introduction in the Legislature of 1897 of the so-called revision bill, which culminated in the Revised Statutes of 1898.This bill was drafted and prepared by Messrs. Sanborn & Berryman pursuant to the provisions of section 2 of chapter 306 of the Laws of 1895, which appointed them “to prepare and report to the Legislature of 1897, the commencement of its first session, bills for the correction of such errors and to harmonize such discrepancies in the statutes as they shall deem advisable, together with such additional sections as they shall deem proper to carry out the general design and spirit of the statutes.”This bill was introduced on the 21st day of January, 1897.The bill carried the present section 925--17 in the following language:

“Territory lying adjacent to any city organized under this chapter may be annexed in the manner hereinafter set forth.”

This is practically the original language to be found in section 17 of chapter 326 of the Laws of 1889, and was in the exact words in which that section then stood in the law of the state at the time the bill was introduced.The bill also contained the present section 926--2, in its present form and as heretofore quoted herein.It will be noted that at the time of the introduction of this revision bill said section 925--17 contained no provision relating to cities organized under special charter, and that section 926--2 specifically authorized such cities to annex territory in the manner prescribed by sections 925--17 to 925--21, inclusive.

The bill was referred to a joint committee on revision of statutes.During that same legislative session there was enacted chapter 138 of the Laws of 1897, by section 1 of which section 925--17 was...