Summary
concluding that a resolution to sell city property was void for city's failure to first refer the matter to the plan commission as required by statute
Summary of this case from Bilda v. County of MilwaukeeOpinion
April 3, 1962 —
May 1, 1962.
APPEAL from a judgment of the circuit court for Winnebago county: HELMUTH F. ARPS, Circuit Judge. Reversed.
For the appellant there was a brief by Cooke Loehning of Neenah, and Henry P. Hughes of Oshkosh, attorneys, and James R. Hebbe of Oshkosh of counsel, and oral argument by Mr. L. O. Cooke and Mr. Hughes.
For the respondent there was a brief and oral argument by Melvin F. Crowley of Menasha, attorney, and Harvey C. Hartwig of Milwaukee of counsel.
This is an appeal by the plaintiff John R. Scanlon from the dismissal of his complaint on its merits. Scanlon, a tax-payer and resident of the city of Menasha, brought this action against the defendants the city of Menasha, R. G. Du Charme, and Ira H. Clough, its mayor and city clerk respectively, to declare illegal and void certain resolutions of the common council of Menasha relating to the sale of 11 city lots to the defendant First National Bank of Menasha and providing for the purchase by the city of the bank building located adjacent to the present city hall. The complaint also sought to have declared null and void the agreements entered into in contemplation of the approval of said resolutions and to enjoin the defendants from carrying out the transaction. The trial court found the resolutions were validly enacted, the agreement did not violate the statutes of fraud, and the common council did not abuse its discretion in approving what amounted to an exchange of property plus the payment of $7,500 to the city, and dismissed the complaint.
For many years the city of Menasha owned the property on Racine street, which prior to 1936 had been used for a school and playground. In that year the school building was destroyed by fire and since that time the land had been used generally for playground purposes and other municipal purposes. A small building located on the premises had been leased to the American Legion and various other public organizations when its use was not required by the park commission which has had general supervision of the property during the last twenty years. Prior to 1957 the city created, pursuant to sec. 62.23, Stats., a city plan commission. In December of 1957, the common council of Menasha adopted an official map in which the area between First and Second streets lying west of Racine street, which included the property in question, was designated as a park. During the same month, the common council amended its zoning ordinance by changing the area from a residential district to a commercial district.
Sometime in December of 1959 or the early part of January, 1960, some officials of the defendant bank consulted with certain city officials concerning the possible exchange of the defendant's bank building for the so-called park property on Racine street. After various conferences between the two groups, the question was put before the common council. The common council passed a resolution on February 2, 1960, stating the school site was no longer needed for public purpose and the public interest would be better served if the property were sold for commercial purposes, and certain city officials were authorized to work out the terms and conditions of the sale, subject to the approval of the common council. On February 16th the common council passed two resolutions, which are under attack in this suit; one authorized the sale of the 11 lots for $57,000 to the defendant bank and the other the purchase of the old bank building for $49,500. Proposed agreements, which were later executed, were attached to the resolutions and approved. The resolutions made other provisions for the earmarking of the money, for taking possession of the property, and for the dependency of each resolution upon the other.
Prior to the passage of these resolutions, the contemplated transaction was not submitted to the city plan commission and no appraisals were made on behalf of either the bank or the city to determine the value of the respective properties.
During the discussion between the officials of the bank and the city of Menasha, there was some talk of the contemplated use of the so-called park property by the bank. It was understood the bank was to build a new bank building on the property and use part of the lots for parking facilities. The balance of the property might be sold to commercial enterprises which would improve the downtown shopping area. However, at the time of this transaction, the bank had no plans completed for its building nor did it make any determination of the number of tots which would be required for banking facilities.
On this appeal, the city of Menasha did not participate and filed no brief.
Three issues are raised on this appeal, but in view of the disposition we make of the first question, it is unnecessary to consider the other two. The basic question is whether the resolutions passed by the common council of the city of Menasha and the agreements executed by the parties were illegal and void because of the failure of the common council to first refer the transaction to the city plan commission under sec. 62.23(5), Stats. We have come to the conclusion that the resolutions and agreements are void.
The trial court held the provisions of sec. 62.23(5), Stats., were discretionary and not mandatory and did not limit the general grant of powers of the common council as declared in sec. 62.11(5).
"(5) Matters referred to city plan commission. The council, or other public body or officer of the city having final authority thereon, shall refer to the city plan commission, for its consideration and report before final action is taken by the council, public body, or officer, the following matters: The location and architectural design of any public building; the location of any statue or other memorial; the location, acceptance, extension, alteration, vacation, abandonment, change of use, sale, acquisition of land for or lease of land for any street, alley or other public way, park, playground, airport, area for parking vehicles, or other memorial or public grounds; the location, extension, abandonment or authorization for any public utility whether publicly or privately owned; all plats of lands in the city or within the territory over which the city is given platting jurisdiction by chapter 236; the location, character, and extent or acquisition, leasing, or sale of lands for public or semipublic housing, slum clearance, relief of congestion, or vacation camps for children; and the amendment or repeal of any ordinance adopted pursuant to this section. Unless such report is made within thirty days, or such longer period as may be stipulated by the common council, the council or other public body or officer, may take final action without it."
The appellant argues the express language in sec. 62.23(5), Stats., by using the word "shall" requires the common council to submit to the commission the propriety of the sale of the so-called park property before taking final action. The defendant bank contends, in considering other sections of the statute relating to the city council's broad powers and the history and scope of sec. 62.23(5), the word "shall" in that section must be construed as having a discretionary meaning and not a mandatory one. This argument is further advanced by the contention the majority of the members of the city plan commission represents the administration in control of the city since there are four city officials and only three citizens composing the commission, and thus the legislative intention could be inferred that a referral to the commission was not a jurisdictional prerequisite to the power the council.
We must start with the proposition that a sale of the so-called playground property was a matter within the scope of the functions of the city plan commission. Since the transaction was in substance and was so treated by the parties as an exchange of the park property for the bank property and $7,500 boot money, the entire transaction fails if the common council is required to submit the sale of city property to the planning commission under sec. 62.23(5), Stats.
A city council has power to sell public property under the powers granted by sec. 62.22(1), Stats., and the city is not required to have a city plan commission. At least three years before this transaction took place, the city of Menasha did provide for a city plan commission and thus the statutory requirements of sec. 62.23(5) must qualify the exercise of the council's powers which deal with matters within this section. In dealing with public property, a municipality is subject to such restrictions and limitations as the legislature may impose. Wisconsin Gas Electric Co. v. Fort Atkinson (1927), 193 Wis. 232, 213 N.W. 873.
In construing sec. 62.23(5), Stats., we must ascertain the legislative intention as disclosed by the language of the statute in relation to its scope, history, context, subject matter, and the object intended to be remedied or accomplished. Worachek v. Stephenson Town School Dist. (1955), 270 Wis. 116, 70 N.W.2d 657. The powers granted a city council to manage and control city property and to act for the good order of the city and for the health, safety, and welfare of the public are not unlimited, but are qualified by the language "except as elsewhere in the statutes specifically provided" appearing in sec. 62.11(5).
The history of sec. 62.23(5), Stats., does not show referral to the city plan commission was to be discretionary. The antecedents of this section are found in the Laws of 1909 (ch. 162, secs. 959-17 a to 959-17 j). The original statute used "shall" in some situations and "may" in other situations. In the amendments of 1917, 1919, and 1921, these sections were either amended or renumbered, but the distinction between the mandatory words in some situations and discretionary language in others was retained. Sec. 959-17 f became sec. 62.23(2) (a) which again was revised by ch. 203, Laws of 1941, and part of it became sub. (5) under the title "Matters referred to city plan commission." The word "shall" has consistently been used in sec. 62.23(5) since 1909.
Ch. 404, Laws of 1917; ch. 400, Laws of 1919; and ch. 242, Laws of 1921.
There are other subsections within sec. 62.23, Stats., which use the word "may" to prescribe discretion in performing certain acts, e.g., secs. 62.23(6) (b) and 62.23(7) (d). Respondents argue these two sections, referring to the official map of the city and to zoning, make notice and public hearing and referral a practically jurisdictional requirement and because notice and public hearing are not required in sec. 62.23(5), the language of that section is only discretionary. We see no logic in this argument. On the contrary, if the public hearing is not to be held on the matter, it would seem consistent with the purpose of representative government that the common council should at least be required to submit such plans to the planning commission.
Generally, the word "may" is permissive when used in the statute, and this is especially true where the word "shall" appears in close juxtaposition in other parts of the same statute. United States v. Tapor-Ideal Dairy Co., footnote 3. The general rule is that the word "shall" is presumed mandatory when it appears in a statute.
Pittman Construction Co. v. Housing Authority of Opelousas (D.C. La. 1958), 167 F. Supp. 517; United States v. Tapor-Ideal Dairy Co. (D.C. Ohio 1959), 175 F. Supp. 678.
State v. Zeimer (1960), 10 Utah 2d 45, 347 P.2d 1111; Andrews v. Shepherd (1959), 201 Va. 412, 111 S.E.2d 279; Assessors of Springfield v. New England Tel. Tel. Co. (1953), 330 Mass. 198, 112 N.E.2d 260; Escoe v. Zerbst (1935), 295 U.S. 490, 55 Sup. Ct. 818, 79 L.Ed. 1566; Vale v. Messenger (1918), 184 Iowa 553, 168 N.W. 281.
We find no uncertainty in the objectives contemplated by sec. 62.23(5), Stats., or from the language thereof because it does not require the city plan commission to make a report either recommending certain action or disapproving it. The purpose of the city plan commission so far as related to the facts of this case is generally to develop and maintain a long-range plan relating to either the sale or acquisition of public property and its location and use. While its functions may be advisory in many respects, it is an important function in municipal government if the municipality is to be developed in accordance with any long-term program of city improvement and if the city is to have a definite objective in its planning. The representatives of the public constituting the city council frequently change and some may not be aware of the long-term policies of the city. It is in the public interest that each municipality have a long-term plan of development which should be adhered to unless the common council at any particular time desires to change it after being fully informed. Only by such method can any consistency in the planning of the future development of a city be achieved.
It does not seem unnatural, illogical, or an unreasonable procedure for the legislature to require a mandatory referral to the planning commission of certain matters, and particularly the sale of city property. We hold, therefore, that sec. 62.23(5), Stats., is mandatory and qualifies the exercise of the powers of the common council granted by sec. 62.11(5), Stats.
The plaintiff raises two other issues, which may be dealt with briefly. We do not consider sufficient evidence was introduced at the trial to show the agreements entered into violated the statute of frauds because they did not contain all of the alleged oral terms of the transaction. Likewise, we do not need to decide whether there was an abuse of discretion on the part of the common council in passing these resolutions without first obtaining appraisals of the two properties. Nor are we concerned with the advisability of buying the old bank building to enlarge the present city hall. Abuse of discretion might, however, be based upon an inadequacy of the consideration no matter how honest the motives of the council were. Great inadequacy in consideration has a bearing on the abuse of discretion. Hermann v. Lake Mills (1957), 275 Wis. 537, 82 N.W.2d 167. The desirable practice of having appraisals when city property is to be sold and of referring the matter to the city plan commission for a report was fully reviewed and set forth in Newell v. Kenosha (1959), 7 Wis.2d 516, 96 N.W.2d 845.
By the Court. — Judgment reversed.