*1 annexa City for for application of Beloit order In re Appellant, tion referendum: Beloit, Respondents.* others, of Beloit Towns 5, April Argued 1970. June 1970. Decided 236. No. reported 361.) (Also N. W. * rehearing September denied, costs, on with Motion 1970. *2 B. appellant Samuel there were briefs For Isaksen, Werner, Lath- city attorney, by Orr, Loizzo, attorneys, oral rop Heaney special Madison, & Lathrop Leon Isaksen. argument by Trayton E. L. *3 Garrigan, by respondents a brief there For the was DeLong Beloit, Dobson, of O’Neal, Elliott & Keithley, Milwaukee, for by Cutler of Brady, Tyrrell, Cotter & and Beloit, Caskey Beloit; by Collins of & of and the town Brennan, Turtle; by Campbell, Steil & and of town attorneys; Rock, and Byan Janesville, for town of of Recht, both of Milwau- J. Cutler and Samuel Richard W. Collins, Be- David Y. both of kee; Roger D. O’Neal and Janesville; MacDougall Michael J. and loit; David J. argument by counsel; Spector Milwaukee, oral and W. Cutler. Richard City proposed Beloit’s The T. J. Hansen, Connor territory was the which the identical

annexation covers February 6, 1967, adopted on subject of an ordinance City Beloit 37 Wis. in In re invalid held annexation, proposed now The 155 N. 2d 633. W. brought 66.024, pursuant consideration, to sec. is under previously the annexation action and Both this Stats. Annexations, the known as Caravilla court are this before pro- being initiator of the from the first derived name nursing ceeding, Inc., home Caravilla, which owns proposed located in the annexation area. illustration, prepared court from the vari- this help put dispute record,

ous exhibits in the will this perspective. Nursing Home, The Caravilla located Rock, pro- Town at the extreme north of the is shown posed power plant annexation area. The in the is river, Town of located Rock Beloit and northeast is proposed in the area. also background following provided Further find- ings of the trial court: territory proposed “29. The for annexation contains 2,694 (more square miles) of land than four acres populated approximately persons; 33 in the Beloit, Turtle, Town of of Rock outside 40 in the Town of 23 in the Town Nursing approxi- Caravilla Home mately nursing 340 in the Town of Rock inside the home. The annexation City’s present about north extends miles of the 2% boundary. northern territory “30. The boundary lies between north of of boundary and the Beloit south of the . . Janesville. . plant power “31. The is located in the northeast cor- ner of the Town of Beloit. The Town of Beloit’s share of plant tax $253,550.00 revenues from year in the approximately of the Town of Beloit re- 16% and ceipts approximately from all sources 39% receipts from state, county other sources than levies, merely school tax pass through levies treasury. represents Town of the approximately This sum 3% receipts from all Beloit’s sources. *4 present “32. proceeding is the fifth in a series of attempts (Project coordinated X) to (in- annex lands cluding City’s under section power plant) in the Town of Beloit. The attempt initial at annexation proceeding was a published 66.024 of statutes, September 7, 1966, approximately to annex square miles, includ-

ing population centers in the Towns of Beloit attempt and Turtle. This December, defeated in filing protest petitions signed by approxi- *6 per comprising approximately 75 2,606 mately electors sought territory to residing the in electors cent 1966, time, September-October, During this be annexed. (the City by the annexation was drafted petition for a popula- omitting annexation) centers Branigan these only territory sought annexed so that to be tion from the 32 Town of Beloit resided electors Town of Turtle power The square annexation area. mile new in the 2% request annexation at in this plant included was still signed Branigan petitions never City. were The of the property owners. by electors a number of sufficient petition 1966, third December, a new and Then, in including power 1) (Caravilla drafted still No. was adding City, suggestion but for the of the plant at the Rock square mile of the Town a half first time by approximately nursing inhabited home contained nursing two home more than was persons. This city of the limits from the northernmost miles Beloit. This by adopted annexation third was March, 1967, City, in 6, Finally February 1967. on population again attempted to annex the centers annexa- nine new 66.024 of Beloit and Turtle Towns again protest attempts defeated tions, these but overwhelming majority of electors. signed by petitions Supreme 30, 1968, January within hours On attempt (Cara- annexation the third decision that Court’s City adopted a resolution invalid, 1) No. villa to initiate setting intention forth 66.024 its under section the be City to The area present proceedings. selected involved exactly as the area annexed was same attempted attempt. five annexation in the third as follows: can summarized annexations be Approxi- mate

Square Date Miles Started “No. Name 7,1966 September Community Branigan September-October, 1966 10s (cid:127)< December, 1966 1No. Caravilla 9 March, 1967 Annexations January 30,1968 2No. - Caravilla

Rule reason. In Town of Brookfield of Brookfield 80 N. held Wis. W. this court that an annexation must a reasonable one: becoming thickly “The settled authorities areas are necessity plans more conscious of for reasonable orderly development. suburban clear It is that the time reviewing has come to consider that an element properly plan cases. order for the de- velopment adjacent city necessary areas it is now bordering properly areas see that are same zoned *7 platted through may provided and and so that streets be for along develop so that will not slums of borders many problems cities that expense will involve and much development. in future “. . . questions On the motion for review we hold that involving suitability adaptability reasonable and and necessity proper growth, reasonable for the develop ment, city and of welfare a are material and relevant reviewing in proceedings.” annexation Town Brook of City Brookfield, v. pages 645, supra, 646. field of In Town Fond du Lac v. Fond du Lac of of 533, 22 Wis. 2d boundary N. W. 2d of line the annexed areas was drawn so to create an island in the territory existing middle of the city annexed and limits. applied The rule of reason was the annexa “Creating tion held invalid: city an island within the solely purpose assuring for of the success of the arbitrary an capricious was action and an of abuse discretion and invalidates the annexation.” Fond Lac du Fond Lac, du supra, of page 542.

The rule of applicable reason was held an annexa- proceeding tion 66.024, under sec. Stats., in Elmwood Park v. Racine (1966), 29 2dWis. 139 N. 2dW. 66. case, In that this court in concurred the conclusion reached the trial court that the annexation was viola- tive of the rule reason. The trial court’s memorandum following noted as quoted wherein the

decision was (1) annexa- applying of reason: relevant in the rule (2) entirety considered; increase tion in its should growth beyond the in population and overflow in (3) area city; for additional of a need boundaries industry to accommodate of homes and construction growth reasonably a anticipated future present or sanitary police, fire, (4) municipality; and extension numbers protection other substantial services court adjacent affirming, areas. residents municipality requirement a demon- emphasized that territory. need for present or future a strate dispute, found, appellants do not “The trial court basis to annex Park had no reasonable Elmwood that being present need or demonstrable Pleasant, no there Mt. showing territory. Without that need for future legal parlance, need, proceeding, reasonable some arbitrary contrary to rule of capricious, and pages Racine, supra, Park v. Elmwood . . .” reason. 412, 413. procedures Beloit, supra, In In re sec. 66,021 Re- (11) (b), Stats., were held unconstitutional. urged one) (appellants in this spondents in that case “public 66.021 interest” sec. the definition However, broad of reason. codification of the rule *8 applicable because public interest was not of definition factors: to three Govern- confined that term sec. 66.021 homogeneity. (11) shape service, 66.021 Sec. ment and public judicial in- Nevertheless, determination of (c). (11) (b) not to be held 66.021 was terest sec. and, of applying the rule reason there- function as same being from unconstitu- was saved fore, statute may their and be the but use “The same tional: factors radically respect are dif- function in them the court’s City Beloit, supra, page 648. In reach- re ferent.” of legislative ing between conclusion, the differences power judicial were discussed. and 384 question public “There nois that if we consider interest as an concept, court, unrestricted térm or as did trial political the determination of what economic and ex- pediency public legislative constitute is a func- interest ‘ought tion. What is ‘desirable’ or ‘advisable’ be’ or question policy, question is a of not a of fact. What is ‘necessary’ or what ‘in the is best not a interest’ fact is judiciary determination an its is exercise of legislative power political when each considera- involves why and reasons tions there or should not an should general annexation. This sharply and universal is rule which differentiating legislative draws the line between power the judicial power validity which the of delegation judiciary by legisla- of functions to the

ture is ex determined. State rel. Klise v. Riverdale (1953), 423, 63; 244 Iowa 57 2d N. W. Auburndale Packing 1965), Adams (Fla. 161; Asso. 171 So. Ruland Augusta v. v. (1926), 42, 456; Joseph 120 Kan. 242 Pac. St. (Mo. 1958), Hankinson 4; (1930), S. W. 2d Annot. 266, 267, L. A. R. 268.” In Beloit, supra, re pages 644, 645. The last case in which this court discussed the rule reason Menasha v. Menasha Wis. 2d 168 N. 2dW. where this findings court held the trial that the annexation court’s did not contrary violate the rule reason was “not great weight preponderance and clear of the evi- dence.” Town Menasha, Menasha v. supra, page 739. It express not the function of opinion is courts to an annexation, as to wisdom of rather, their role is to determine, question fact, whether there are justify circumstances which the action taken facts the city. This, essence, the difference between judicial rule of reason —an power exercise of a—and finding public that an annexation interest— legislative function. “This court has discussed the thin line between a proper improper delegation legislative authority on other occasions. *9 “ upon go operation into before us ‘. . . Does the law of determined happening certain facts be of a state the require and court, or it authorize circuit does only facts, go further, determine but not court to and legislative judgment upon questions discre- of pass its question can answered ? If the branch of tion first this negative, in latter in the affirmative and the branch sustained, the ascertain- then law must be because clearly questions of fact ment and determination judicial power. If, purely on the other an exercise question hand, must be answered the latter branch sustained, affirmative, then the cannot be in law delegated power cannot be to the circuit because such Incorporation re court under our constitution.’ Village (1896), 616, 622, North Milwaukee Wis. Scharping (1966), also, v. Johnson 67 N. 32 Wis. du Lac 225. 1033. See W. In re Fond 2d 145 N. 2d 691.” W. 323, 329, 166 N. Wis. 2d W. question court

The before the trial case was this presumed respondents had whether overcome the proved validity proposed and an- ordinance arbitrary capricious. Based on the cases nexation required showing discussed, no this there was appellant If need for the annexation. has reasonable any annexation, need for further such reasonable shown weighing necessity requires these facts discussion determining parties. what the best interest of Beloit, judicial In re function. This is. supra. no However, case the trial court found evincing appellant acquire pro- a need for facts territory: posed reasonably present no nor foresee- “65. The has particularly need for additional land and

able future the proposed present land in the annexation.” shape found that the trial court also boundaries arbitrarily designed capriciously, and fixed solely to assure its success. shape pres- reason The dominant “48. proposed annexation was achieve an annexation

ent *10 386 power plant number and a which included the sufficient the annexation to overcome electors the of favor of residing in the opposition majority a the electors of of thereby nursing territory home and the but outside of Cara- resident electors assure its success. Absent the been defeated villa, by present annexation would have majority signed by of electors protest petitions a 11, 1968,

residing (Stipulation, June outside the home. 2.) par. present pro- shape boundaries “49. and The of arbitrarily designed and posed and fixed solely capriciously, to assure its success. crazy quilt proposed annexation will create “50. The inefficient for will be difficult and which boundaries City administer, and will result both the and Towns regard expansion haphazard, for in a unrealistic without pub- present development in the best overall and future lic interest.” question, therefore, court The before this whether contrary great findings court are to the of the trial weight preponderance clear of the evidence. City supra. Menasha, Menasha v. of upon

One for annexa- factor reasonable need growth city tion can be based is the of a and the over- population adjoining flow into areas. The trial court following findings respect appel- made with to the lant’s need for additional land: present City “61. The suf- boundaries contain City’s ficient vacant land to accommodate all of the growth projected population City The to 1980. on January 1, 38,937. City’s projected popu- 51,300. Thus, City lation in 1980 a maximum of expect population can an increase between now and 12,363 people. present City 1980 of At the time the con- 1,500 at tains least acres vacant land zoned for resi- already provided dential use most which has been with Using public public expense. density at utilities per 1,000 (2,600 population recommendation of 110 acres acres needed for 25,000 .) population appears . . it 1,500 presently acres of vacant residential land in the

387 13,500 people and is more would accommodate over 12,000 people. enough expected than to accommodate the “62. On the of actual construction basis dwelling average 142 between 1962 an units again using per year, plan recommendation dwelling dwelling (7,800 per units three units acre 2,600 approximately land) appear that has it acres would 30-year supply land of vacant residential = = 47,1500 (142 +). 31.9 -h -4- land, respect “63. With to commercial industrial City presently approximately contains acres *11 Using the of vacant land zoned for standards use. such (2.4 1,000 pop- per either the Urban Land Institute ulation for acres industrial) commercial, per 1,000 12 for acres per 1,000 population (4.6 or the E.S. W. R. P. C. acres 1,000 population commercial, per for trial), 4.3 acres for indus- appear than it would 625 acres are more that City’s growth expected to accommodate the sufficient 12,000 people. annexations, “64. Because of three commenced sub- sequently present attempt, to the now become have effective, more City’s expanded by boundaries have been 1,200 than acres vacant land. This makes a total 3,400 presently of more than acres vacant land in the City square 5y% The addition the area miles. —over proposed present for annexation in the would in- case 6,100 approximately square crease this to 10 miles acres — undeveloped land. would be sufficient to accom- This growth 50,000 persons (6100 for more than modate X growth per persons per unit). units acre No in such X City probably of Beloit will occur within the reason- ably foreseeable future.” Appellant population is a there overflow contends “which, 100,000 with the of Beloit will reach making appellant ascertion, 1985.” In this this directs Comprehensive Community attention to Plan court’s Beloit, study However, that Wisconsin. shows for figure “greater 100,000 population Beloit is growth Area” and of the of Beloit below that average: the national “During period popula- of 1950-1960 the Census greater 46,014

tion of Beloit Area increased from 56,360 considerably persons, percent. to or 22.5 This is greater growth population rate of than the increase (15.5 percent) Wisconsin and Illinois combined percent). (19.0 period, the nation grew Beloit, alone, increase of 11.0 increased 29,590 32,846 persons, an from percent, population had but 1962 the substantially 35,131 persons primarily — result of annexation.” report development The same that most residential states city will occur balanced outside limits but this will be part by apartment multiple-family a new trend toward city. development report parts within of the some manufacturing employment “[a]lthough also that states grow likely will continue in the Beloit Area it development most new industrial will occur south line; .” state . .

Appellant findings also the trial court’s with contends respect supported to the need for additional land is not alleges: evidence, (a) Evidence offered did multiple-family dwelling permits; (b) not include failure many to take into account the nonresidential uses found building zoning; (c) permits residential issued outside city specified, the needs of the whole com- munity considered, must be the drain to the suburban *12 reflected; (d) not towns is the failure to consider the development modest recommended for east lands problem; a (e) Interstate where there is rock needs of existing population space living, for additional for in- dustry ignored; and commerce (f) the fact residentially that much zoned small, area cut-up is of parcels, develop. difficult to

Appellant challenged figures has respondent findings and the of the trial court but has not substan- citing position by any tiated its evidence which this findings court can contrary great now hold these to the weight preponderance clear of the evidence. Re- spondents had the burden to come forward with evidence which would show for there was no reasonable basis figures by establishing annexation. This done was findings relied on the trial court in the of fact. The trial court found that sufficient vacant there was resi- approximately, thirty-year dential land available for a supply. This did not take into consideration annexation which became effective after this action was commenced expanded the boundaries of the of Beloit 1,200 more than additional acres. This reinforces appellant conclusion of the trial pres- court that no “has reasonably any ent nor foreseeable future need addi- land. . .” tional .

The trial proposed court found that annexation area, Nursing from aside the Caravilla Home was presently city sanitary need services and that sewer the installation present of such either at services time in the economically foreseeable future would not be findings against It feasible. cannot be said that such are great weight preponderance and clear of the evidence. Appellant vast asserts that residential areas surround- ing of Beloit are unsewered and that “[a]reas polluting they located are near river unless are connect- system.” general ed to central This ais statement testimony on Johnson, based of Mr. Herbert E. a civil engineer. sanitary However, Mr. Johnson testi- also fied that he was not with familiar the existence of particular pollution problem north Road Philhower territory (most proposed of the is north road) employees other than that various sanitary him of Beloit had told there a need for sew- in the area. ers brief, appellant expenses

In its discusses the relative providing proposed involved sewer services to an- economically area provide nexation and how it can more comparison respondents. However, those services provide relative of who should merits such services *13 party appellant respondents and which or in a bet- — —is facilities, in position ter not the issue to sewer is install finding applying Indeed, a if the rule of reason. such making legislative deter- made, courts would a be parties. mination of what in the best interest is Nursing Home, Caravilla The trial court found that the area, was at the far north end of the annexation located only for added sewer service. which called situation city engineer appellant for that if he were testified given legal authority, requisite he would extend Avenue, point Bayliss only north sewer service far as as Nursing Home. There Caravilla five miles short showing appellant therefore, was, need for to no territory question provide land annex that to so as facilities. with sewer testimony Til-

Appellant upon Robert E. relies city ley, it a member of the Beloit council who stated was absolutely necessary expand for the to Beloit its many possible directions as to enable the boundaries as long- develop plan growth, city for for future range highway systems planning of beltline sewer systems; city job opportunities to offer enable the new plants industry; and to ade- the location of new job quately perform representing of councilmen in connection, Johnson, In Mr. Walter constituents. K. Planning, State Director of former Wisconsin testified long-term that, opinion, of a in his it was interest they municipality annex become available in lands planning development. to have them for for future order appellant position addition, it is in a better claims growth provide development for than lands may true, respondents. but it This does not alter the requirement appellant, particular appeal, in this present foreseeable future demonstrate need for of these A lands. determination of what judicial convenient or what is best the area not a procedures strictly Annexation statutory, function. are v. Racine Pleasant Mt. Wis. *14 governed rule judicial the review

N. W. legislature deems it time as the of reason. Until such will continue otherwise, of reason the rule advisable to do both action where applied in situations such as this be position they opinion better parties the are of stand potentially quality provide kind and the services 66.024, given procedures required. Thus, sec. the shown, or needsmust Stats., some demonstrable capricious, necessity arbitrary annexation is of territory supra. Showing Racine, Park that Elmwood merely desirable, than sought better for annexation is city already controlled, particular will be or that a land satisfy provide for an area does best able to services the rule reason. respect finding to other court with trial challenged ap- on

municipal has not been this services peal: regard municipal to other ser- with “52. The evidence that, zoning while the police, fire, shows —likewise

vices— proposed area provide to the could such services adequately Towns annexation, and is not the area served in need of services.” such annexation,, having no need shown for this There been designed shape and boundaries it follows solely therefore the to assure its success and capricious. arbitrary and disbursements. Award of Stats., provides: (3), Sec. 66.024 by referendum; order. . . . court “Annexation proceedings If for “(3) Dismissal. reason discretion, may, order dismissed, the court its are entry city village against judgment or for such any part have thereof as annexation.” been incurred disbursements parties opposing “dis- awarded trial court Pursuant statute Rock totaling $30,080.53. The Town bursements” $2,387.50 was $2,492.93 requested of which allowance requested $1,998.10, attorney’s fees; Town of Turtle attorney’s fees; and the $1,959.80 was of which $39,607 was requested $45,971.18, of Beloit Stats., 66.024 attorney’s to sec. fees. Pursuant *15 Town $25,589.50; the Beloit awarded Town of $1,998.10. Turtle, $2,492.93; Rock, and the in- objects for disbursements Appellant award to the (3), attorney’s 66.024 cluding sec. an award of fees since On fees. Stats., specifically provide for does not such no limita- hand, respondents contend there is other example 66.014 in sec. is for there tion in this statute as (3) (b): villages . incorporation and cities. . .

“Procedure “(3) Hearing; . . . Costs. allow “(b) may order in discretion court The its in provided for actions and as costs disbursements any subsection.” proceeding in under circuit court this argue respondents discretion it was within the Thus, attorney’s fees in the award court include the trial to (3). 66.024 disbursements under sec. statutory dependent upon wholly

The award of costs 126, Rheingans Hepfler (1943), 243 provision. Wis. 585; (1967), v. Johannes 36 Wis. 9 N. 2d Gustin W. recog Attorney’s 2d are not 195, 153 fees 2d N. W. 70. authorized nized recoverable unless statute or as contract, proximate except natural and result of a when plaintiff wrongful in defendant has involved act (1962), litigation parties. v. Fale other Widemshek with general 2d cost 117 N. W. 275. The stat 17 Wis. Fees, ute, costs into two items: 271.04 breaks down sec. disbursements, (1); (2), 271.04 sec. sec. 271.04 by respondents (sec. 66.014) referred in the statute legislature and disbursements.” used the terms “costs specifically court There allow are statutes Stats., attorney’s fees; (3), however, 66.024 award sec. provide our attention has not been direct- does so any authority, authority, any nor can find ed to we such in term been used such in which the “disbursement” has attorney’s We, way included. fees were indicate legislature therefore, if intended to conclude had attorney’s fees, it would have done allow the award of statutory direction, specific ac- in Absent so terms. attorney’s excluding disbursements, fees, shall be tual pursuant 66.024 amount as allowed to sec. such to be reasonable. The award the trial court determines attorney’s including disbursements, fees, is reversed and remanded. Judgment

By part; and re- affirmed Court. — proceedings part remanded for con- versed further opinion. appeal, On awarded to with costs sistent respondents. disagree. (dissenting). respectfully I I J.

Wilkie, very court entered extensive would reverse. trial *16 findings majority fact in this The the of case. of court findings appeal these will be overturned state that on not against they great weight this court unless are preponderance evidence. clear of the Insofar as these agree adjudicative facts, findings I are that of this However, of to used. insofar as the standard review findings by the concern trial court matters these legislative court, choice, court then that as well this as review, record ascertain on must examine the whether legislative rational choice is without basis.1 1 Regula example: (5), (Employment sec. 103.56 Stats. See for (Actions affecting marriage.) Injunctions.) tions, Sec. 247.23 1 Corp. Refining (1966), Oil v. Tomah 30 2d Clark & Wis. See Highway Dept. 299, citing 547, Carolina 141 N. South W. Sup. 177, 191, (1938), 58 Brothers 303 U. S. Ct. Barnwell 82 L. Ed. 734. legisla- findings my are, opinion, matters of

These prior Beloit tive choice. Case we said: ‘ought “. .. is ‘desirable’ or ‘advisable’ or to be’ What question policy, question is a not a of fact. What is ‘necessary’ ‘in or what interest’ a fact best is not judiciary determination is an exercise of its legislative power political when each considera- involves why tions and reasons should be an there should or annexation. ...” recognized difficulty The trial court here itself making judicial largely determinations of matters within legislative sphere choice when it said: say “Now it isn’t me to what the annexation law say this be, state should I but will this into the record that problem trial this convinced me that a has of this kind should not be solved courts. issues in this they pertain case so far sufficiency peti- to the tions, the question any of whether or not or either of parties technically procedural followed the statutes involved, certainly good legal questions. those are But you having judge when start decide whether not a or proposed annexation reasonably includes land which is adaptable useful and city uses needs any city you of Beloit asking judge other are that judicial make not a political determination but a and a legislative determination and very one in I find it legal apply difficult to body rules. other Some should do this, not courts.” Nevertheless, here specifically the trial court found city present reasonably has no nor foreseeable need for future additional majority land. The af- finding being against firm great as not weight preponderance and clear of the evidence.3 In re Beloit (1968), 637, 644, 37 Wis. 2d 155 N. W. Incorporation Village See also: In re 2d 633. North Milwau kee 93 Wis. 67 N. W. 1033. *17 3 Town See Menasha v. Menasha (1969), 42 2dWis. 719, 168 2d N. W. 161.

395 distinguish impossible It would seem be almost to to being necessary a an between determination is as of what legislative power a determina- exercise of and not factual which, tion, and a need of no reasonable determination according majority, to not a determination factual great against to be overturned on review unless weight preponderance clear This is of the evidence. legislative and, therefore, matter the trial a choice into merely check court’s this court’s function is to any to see if I would the facts rational basis. there is there is confirm the find a rational and thus basis annexation. analysis rejected application

If this and the upon, rule I so-called insisted would limit reason is outrageous its effectiveness to annexations which are so clearly unreasonable and arbi outlandish as to be trary capricious.4 determining this, In court own, free rule of reason apply, on its should proposed annexat determine reasonableness proposed A trial ion.5 determination a court that a or not violate the rule of reason annexation does does my opinion, is, conclusion of law a that court. reject accept free this court is such such situation irrespective ostensibly limit standard conclusion ing words, scope of In other review. this court can our adjudicative of law from the make its own conclusions against found court which are trial facts weight great preponderance of the evi and clear dence. proposed here not violate the does dough- shoestring,6 hole in It of reason. is not

rule 4 Lac (1964), Fond Lac v. Fond du Town du See 533, 126 2d N. W. 2d 201. Wis. 274 Wis. of Brookfield of Brookfield Cf. 2d 800. 80 N. W. (1964), 24 Pleasant v. Racine Wis. N. W. 2d 6 Mt. 757.

396 wholly nut,7 attempted of a or the unneeded annexation community largely undeveloped tiny It big, to a one.8 arbitrary capricious.9 Thus, should not be voided.

I am authorized Mr. to state that Justice Heffernan joins in this dissent. Appellants, others, : MacLean

Estate MacLean Madison, Trustee, v. First Bank National others, Respondents. Argued 26, June June

No. 218. 1970. 1970. Decided (Also reported 874.) 177 N. W. 7 Lac, Town Fond du Lac supra, v. Fond du foot note 4. Elmwood Park v. Racine 2dWis. 139 N. W. 2d 66. Brookfield, supra, footnote 5. of Brookfield