*1 Bleck, Respondent, Village, Appellant. v. Monona 28, 1967.

February February 2— *3 by Immell, Herró, appellant there briefs For the were argu- oral Sundby Madison, and Buehner, DeWitt & Sundby. by D. Robert ment argument respondent and oral there a brief

For the was Madison, pro. per. by BlecJcof in Charles A. Bradbury of curiae filed Julian

A brief amicus League Madison, legal Mu- counsel Wisconsin nicipalities. following presented: basic issue is J.

Hanley, village incorporate pur- May a fourth-class organization incorporation plan of suant its own governed by creation and state law and not organization ? 1 of the ordinance reads:

Sec. Authority. Op Home Rule “Section l: Exercise hereby Village Monona, Wisconsin, elects XI, Constitution, to tion Article and Sec- Section Wisconsin governed Stats., 66.01, not to be Sections Wis. 62.14, 61.189, 62.08, (1), (8) (c), 62.09 62.09 Wis. Stats., Ordinance.” conflict insofar as said sections with this Charter theory apparently appellant that under ignore may rule it in the state law transformation home city. to a fourth-class from *4 determining In the issue the we must first consider incorporation effect of home rule in on the of Wisconsin municipalities. incorporating any city The of be shall provided by 32, IV, Const., uniform as 31 and art. secs. read which as follows: “Special private prohibited. laws 31. Section legislature enacting prohibited any special from or following

private in the laws cases: village, incorporating any city, or “9th. For town to amend the charter thereof.” subjects. on 32. enumerated Section “General laws legislature general provide for the trans- shall laws may prohibited of action business that section thirty-one article, uni- and all such laws shall this throughout operation in their form state.” 31, 9, IV, (1892), preceded Sec. sub. art. Const. adoption 3, (sec. home-rule art. amendment XI, Const.) Enabling and the 1925 Act for said amend- (sec. 66.01, Stats.). ment 3, Const., XI, provides art.

Sec. for certain limitations municipal home rule. villages organized pursuant “Cities and to state law are hereby empowered, to determine their local affairs government, subject only to this constitution and to such legislature enactments shall with of state-wide concern as uniformity every city village. every affect or be prescribed by The method of such determination shall legislature. . .”. part 3, XI, The first Const., of sec. art. makes it clear organized pursuant that cities must be state law. abrogate necessity home-rule amendment did not villages following for incorpora- state law before a valid only tion could Home applicable occur. rule once a is created to state law. The home-rule amend- clearly ment could completely changed have uni- formity requirements 9, of sec. sub. and sec. art. IV, Const., change if were desired. The by application of Monona attempted of home rule has abrogate procedure provided by for villages becoming 61.189, Stats., cities in sec. and certain general of ch. 62. laws powers

Use incorpora- incorporation tion of a by special constitutes char- village. ter of the

196 resting sovereign power ais power create cities to Thompson v. ex rel. Mueller solely the State state. with 20; rel. ex Sleeman 488, 137 State N. W. (1912), 149 Wis. 858; Barth and 437, 219 N. W. (1928), 195 Baxter Wis. v. 151, 89. 282 N. W. (1938), 229 Wis. v. Shorewood considering the supra, in Case, the court Mueller In the adoption prior the act constitutionality of a home-rule and 497: pages 496 at held amendment of the home-rule open toas whether while, question were if the “So change delegate or power to make legislature a properly can determining form city charter, in sense by except short, fundamentals, in government and the in method, to be answered have option it would law regarded ruled State thus negative, as it should subsequent Mayor, supra, cases. Boycott etc., v. rel. ex plain intent of foregoing reinforced “The through- uniform, city charters shall be constitution out the of sec. practicable. Before subd. state, nearly as general adopted law IV, art. was existing classify enacted. The scheme of was was opportunity, general legislation and to afford cities interference, adopt char- legislative an entire without covering any particular sub- ter, portion thereof existing special portion charter or place an ject, in general of sec. and the subdivision law new thereof. uniformity companion in IV, to effect laws art. were question plainly in in charters. enactment changes it facilities for thereof. Under in violation regardless number, character, frequency, charters, of immeasurably greater uniformity, than under would system prior 1891.” that the home-rule nulli- do not believe amendment We quotation, revealed in the above nor do we the law fied amendment made a drastic that the home-rule believe change by implication. purpose in- not the uniformity home-rule amendment to tent vitiate legisla- requirements of the and to divest the constitution *6 responsibility ture of its constitutional munici- create pal corporations. cases, amendment,

Two after the decided clearly support position: this Baxter, supra,

In ex pages State rel. Sleeman v. at and this court said: recognized purpose “The of this amendment was to villages self-govern- upon confer of cities and a measure hand, possessed.

ment theretofore not ... On the other legislative organiza- it is clear that tion and action in matter government villages only and is not cities contemplated granted imperative. power but is to villages organized pursuant ‘cities and to state law.’ This recognizes plainly legislation the existence of under state villages may organized. which plain, therefore, and cities is be ... provision only that the not constitutional legislation authorizing contemplates organization villages, legislation vesting cities and but it authorizes powers appropriate necessary them pur- with poses purpose apparent organization. any of their . . . Neither is there provision legislation from the that now existing power marks the limit of subject, present bringing over the that so method of villages throughout cities and into existence must endure years changed after times conditions have existing provisions inappro- have become archaic and priate changed conditions, changed by to the or until con- Legislative power upon stitutional amendment. this as subjects legislature, other well as all still rests with the express placed upon and there is no limitation the exer- power. .” cise that . . foregoing appears From the it home rule available organized municipal corporations pursuant to state law by legislature. to the rules established Case, considering supra, court in the Barth This uniformity requirements of the constitution home- and the amendment, page rule said on 157: legislature clearly empower the provisions “These area an urban municipal corporations. Whether create village deter- or a be incorporated aas shall mined legis- legislature. By by the rule established 61.01, Stats.), the inhabitants (sec. enactment lative specified determine there limits the territorial within whether village. in- so incorporated a When shall prescribed ch. powers all the corporated the has by which method provides another 61.58 Stats. Sec. a become may shall that electors determine containing population of city. By 62.06 district containing consisting an in- 1,500 of and or more and city.” village may unincorporated become a corporated or language the court believed indicates The above *7 creating legislative in- procedure for cities was still surplusage by amend- the home-rule tact and not rendered ment.

Along must be created limitation that cities with the another condition in sec. pursuant there is to state law legislation Const., 8, XI, of state- art. which states uniformly prevails intended to affect cities concern wide over local matters. organiza- legislature intended that believe the

We a of uniform and that matter tion of cities be concern. statewide legislate grant authority to mat-

Home rule is the of in licensing concern, of bakeries. of local as the ters such (2d) 179, Sheboygan (1966), 140 v. 30 Johnston Wis. building heights, 247, (2d) as in or to establish W.N. 633, (1926), rel. v. Milwaukee 190 ex Ekern Wis. State 860. N. W. 209 village lawfully attempt can

Before the of Monona powers re- under in elections make gard village Stats., a to ch. must first exist as village nothing city. can do This means fourth-class organizes provisions of until it about ch. to state law.

199 correctly court trial concluded that there are two village may city. by which a One methods a become organize city city manager method under is to as a 64.16, plan, pursuant 64.01 to This secs. Stats. method is of no concern in the instant case. other method designed by the found in 61.189. This provides very simple procedure whereby section a a vil- lage population 1,000 with a can of become a fourthrdass city petition a without and referendum or charter ordi- procedure. provides nance that a two-thirds vote of village trustees can make the determination if the village city. a the num- become resolution fixes proposed and of the and ber boundaries the wards city mayor for the sets time first election of the aldermen. (2), part Stats.,

Sec. 61.189 reads follows: “ (2) The election shall noticed and conducted regular the result canvassed and certified as in the case immediately certification elections and the clerk shall secretary file copies with the of state certifying holding the fact of such election and result description legal thereof and a boundaries village thereof; proposed copies plat certified of a . . .” requirements

The above must be before fulfilled secretary any power of state has to issue certificate *8 incorporation. village

The requirements of Monona not did fulfill these and, therefore, city is not to be entitled issued a charter.

Compliance statutory require- with the aforementioned governed general by ments is essential in order be to the city charter 62, laws. Ch. Stats. village attempted bypass

Here the 61.189, Stats., sec. attempted governed and also not to by ch. before any city duly incorporated. village’s The failure to comply was a matter of rather substance than form. Sec. 200 city

61.189 of aldermen at the calls for an election first city place election. The election take first must before secretary incorpora- the of can certificate of state issue a village city postponed of tion. Here the election first existing village proposed and that officers officers carry postponed place. would over until the election took legislative appears election to be the intent that an city by secretary of before the officers wards be conducted empowered of state is to act. ordinance, village, by proposed 4

The of the charter sec. large. provided for the election of aldermen at believe We general the election in accordance should be with the along 61.189, 62.08, Stats., charter law. Sec. with sec. very established, it clear that are and makes wards to be an election wards is be conducted. adopted specific has scheme of

organization. village improperly rejected of Monona statutory procedure. Stats., 61.189, Sec. that states village city, very once the it at becomes that moment governed by general city charter law. is then provisions bound ch. until it utilizes the of ch. 66. legal appear way reversing There not does engaging judicial legislation. the order without appellant 61.189, Counsel for contends that if sec. Stats., provides insofar as the election of the first mayor and common council is of statewide concern and provisions relating ordinance to such void, provisions election are are severable and of the charter remainder ordinance is valid. agree clearly do not We with this contention since it 1

appears 4, 5, 8, and 9 of the secs. charter ordinance 1 Relating power council; relating Sec. 5. to veto of the sec. present continuance offices and officers city; relating offices officers to the continu present ance of the boards and commissions of the as hoards city. commissions *9 provisions they contravene the sec. are invalid because 61.189 and ch. Stats. change not conclude the home-rule amendment did

We existing statutory procedure for the creation of cities. uniformity requirements of the constitution and the The legislature in the amendment vest state organization duty provide for the creation and to municipal corporations corporations, and cannot organization. of a local creation or Stats., 61.189, statutory procedure The found strictly adhered to charter is before should village. granted aspiring an comply pro- of Monona failed to with the 61.189, Stats., attempt incorpo- of sec. visions adoption rate ordinance No. 7-66-308 of the state of and is null contravenes law Wisconsin and void. Judgment

By the affirmed. Court. — JJ., part. took no Wilkie, Hallows (dissenting). I must defer to J. While Heffernan, logic respectfully majority, I the inexorable of the dis- upon syllogism agree major premise which its with rests. opinion appears upon premise majority rest chang- municipality prohibits from constitution

ing government by special adoption of a its form proscription of charter. This is a misconstruction prohibition The clear of the constitution the constitution. enacting prohibited any from that “The is special private incorporating . . . 9th. For law. city, village, or to amend the charter thereof.” town or supplied.) only (Emphasis effect art. IV. Sec. legisla- provision prevent of that constitutional tampering ture from on an individual basis with basic *10 governmental any city village. pro- structure of This nothing vision the constitution has to do with the case government at issue —where a local seeks to alter its own very purpose charter law. of the home- permit rule amendment is such alteration. I amendment, do find

Nor that the home-rule XI, art. constitutes a limitation in The ma- this instance. jority opinion position phrase, takes the that the “cities villages organized pursuant hereby to state law are empowered, govern- to determine their local affairs and ment,” municipal corporation means that a must first organized city a before it can exercise its constitutional option governed governed. not to be as other cities are is, implicit There doubt, no require- in sec. 3 of art. XI the properly organized governmental ment that there be a functionally unit that structured to administer power. exercise of the home-rule of Monona “organized pursuant is such a unit to state law.” Under right the statutes and the constitution it has the to deter- city modify mine its local To affairs. become a and to city respects sought, respects in the law in that “paramount city are of state, concern” to the and not the proper powers. important exercise of home-rule It is government being to realize that there awas in that could properly speak people for the of the area. For this court say approved by representatives that what was of Monona and ratified the electorate in nullity referendum is a step it because was done in one rather than in two is an exaltation of dubious form over substance, disregard express in people. will of the

Fortunately, severely legalistic interpretation this powers granted municipal corporations by the people under the home-rule amendment is limited to very only facts this case. The rule of law which precedent city orga- this case is is that a must first be powers. can nized as before it exercise great properly narrowly interpreted, As so no does principles to the of home In the rule. view this harm writer, appellant correctly counsel for states “paramount interest” doctrine is standard used determining propriety this court in of home-rule powers where the matter involved is of local both opinion concern. not deviate from This does statewide recently that doctrine which has so been restated Sheboygan (1966), (2d) v. Johnston 30 Wis. (2d) 247. *11 W.N. might suggested an of caution

While excess have procedure majority bifurcated that to be considers qua reorganization proposed the sine non of into a city, fair, efficent, common sense dictated the and reason- transforming able method from used Monona city. thereby to a The writer sees no violence that was municipal corporation done to the axiom that a ais pur- creature of the done was was —all legislature. suant to the state law as determined Any only salutary deviations therefrom not but were were insignificant legislative pre- so as to de minimis. No rogative slighted, people and the will was proposed reorganization. I served see no reason striking respectfully I down this ordinance. dissent majority. from the conclusion of the