Opinion
April 8, 1952 —
May 6, 1952.
APPEAL from a judgment of the circuit court for Brown county: E. M. DUQUAINE, Circuit Judge. Reversed.
For the appellants there were briefs by Evrard, Evrard, Duffy, Holman Faulds of Green Bay, and oral argument by John P. Holman, James R. Faulds, and R.E. Evrard.
Clarence W. Nier, corporation counsel, for the respondent city of Green Bay.
John W. Reynolds, Jr., of Green Bay, for the objectors respondents.
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 three hundred thirty-seven 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 "counterpetition") was filed with the city clerk and on the same day presented to the council, which bore five hundred eleven 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 counterpetition was referred to the annexation commission and there was a motion to hold the proposed annexation ordinance over until June 7, 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 counterpetition 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 this 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 2,768.12 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 proannexation 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 bar to the incorporation application. However, it was not until July 9, 1951, that a formal judgment was entered dismissing the incorporation petition. The petitioners for incorporation appealed from said judgment.
This appeal presents the question of whether at the time of instituting the proceedings for incorporation of the village of Preble there were pending before the council of the city of Green Bay annexation proceedings for the annexation of part of the same lands embraced in the territory proposed to be incorporated as a village, which would bar the incorporation proceedings. In In re Incorporation of Village of St. Francis, 208 Wis. 431, 243 N.W. 315, we held that if at the time a petition for incorporation of a village is filed there are pending proceedings for incorporation begun in good faith to annex to an adjacent city a part of the territory included in the proposed village, the application for the incorporation must be denied. In State ex rel. Madison v. Walsh, 247 Wis. 317, 321, 19 N.W.2d 299, we stated:
"The law requires the circulation and filing of a valid petition to give the common council jurisdiction in an annexation matter. The towns are entitled at any time to attack the proceedings by a showing that the original petition filed with the council was invalid. Wilson v. Sheboygan (1939), 230 Wis. 483, 283 N.W. 312; State ex rel. Thompson v. Eggen (1932), 206 Wis. 651, 238 N.W. 404, 240 N.W. 839. Hence the question of whether the petition was valid in its inception is properly raised here, as it was considered and decided below."
In the syllabus in In re Incorporation of Village of St. Francis, supra, it is stated that it was proper to deny an application for incorporation of the village because of a pending annexation proceeding "not void on its face." In view of the later decision in State ex rel. Madison v. Walsh, supra, a better statement would seem to be that the application for incorporation should be denied if there is a pending proceeding for annexation valid on its face. In order for an annexation proceeding to be valid on its face one of the requisites would seem to be that the petition for annexation must either contain an allegation that it is signed by the required number of electors and property owners of the territory to be annexed to comply with the requirements of sec. 62.07 (1) (a), Stats., or else that proof of such compliance with the statute affirmatively appear in the record of the proceedings of the common council, — such as by way of a filed affidavit or a determination by a council committee, etc., that the petition did bear sufficient signatures to comply with the statute. In the absence of any such allegation of compliance in the petition itself, or extrinsic proof thereof in the council proceedings, it becomes necessary for the court in the incorporation proceedings to determine for itself whether a valid annexation petition bearing sufficient signatures was pending before the council at the time of filing the incorporation petition.
In the case at bar, the petition for annexation contained no allegation that it was signed by sufficient electors and property owners of the territory to be annexed to comply with the statutory requirements. Neither was there any proof by affidavit or otherwise appearing in the council proceedings up to October 10, 1949, establishing that the petition did bear sufficient signatures to make it a valid petition. The trial court rightly concluded that those things which transpired in the annexation proceedings subsequent to October 10, 1949, are not to be considered in determining the validity of the pending annexation proceedings. In other words the question in the instant case resolves itself down to whether on October 10, 1949 (the date of filing the incorporation proceedings), there was pending before the council of the city of Green Bay a valid petition for annexation bearing sufficient signatures to comply with the statute.
Inasmuch as no steps had been taken either by the city, or by the electors or property owners of the territory proposed to be annexed, between June 7, 1949 (the date the city council adopted the report of its annexation commission), and October 10, 1949, we are constrained to hold that the city of Green Bay is precluded by the action of its council in adopting such report from now contending that on October 10, 1949, there was pending before such council any valid petition for annexation. Said report ended with the statement: "Because of the greater number of signatures on the counterpetition than were on the original petition requesting annexation, the commission reluctantly advises the mayor and the council of the city of Green Bay that it no longer can consider the annexation of this area on the basis of the original petition." By adopting that report the council in effect determined that the original petition for annexation bore insufficient signatures of electors and property owners of the territory to be annexed to comply with the annexation statute (sec. 62.07, Stats.); and this state of the record in the proceedings of the council continued unchanged by any subsequent occurrence until October 10, 1949. The city is bound by its own determination of the insufficiency of the annexation petition as against the rights of the petitioners for incorporation, who after such determination proceeded to take steps for incorporation by complying with all statutory requirements therefor, and had filed their petition for incorporation with the court prior to any steps being taken to revive the annexation proceedings by securing additional signatures of electors and property owners to the petition for annexation.
Whether in the absence of the institution of the intervening incorporation proceedings, the original annexation petition could be revived by the securing of additional signatures after October 10, 1949, so as to give the city council jurisdiction to adopt the annexation ordinance on November 1, 1949, we find it unnecessary to determine on this appeal.
By the Court. — Judgment reversed and cause remanded for further proceedings in accordance with this opinion.