*1 Mueller, City Russell E. of Madison Plaintiffs-Respondents,†
v. Defendant-Appellant. Fitchburg, Town Supreme Court April 26, 1983. Argued February 1983. Decided No. 82-1218. 782.) reported (Also in 332 N.W.2d denied, costs, Motion for reconsideration without June 1983. † J., dissents. Abrahamson, *2 For defendant-appellant by there were briefs Rich- ard K. Nordeng, Carolyn P. Lazar Stafford, and Rosen- baum, Hansen, Rieser Madison, argument & and oral by Nordeng. Mr.
For plaintiffs-respondents by there awas brief Voss, James M. assistant attorney, on with whom Henry the brief Gempler, was A. city attorney, Rus- Mueller, sell E. argument Madison, by and oral Mr. Voss. Natkins, Amicus Curiae filed Burt P. brief was legal League counsel, Madison, Mu- for the of Wisconsin nicipalities. appeal an
WILLIAM G. J. This is from a CALLOW, county declaratory judgment Dane circuit court and or- granting permanent injunction. der circuit court Fitchburg’s incorporation declared the Town of Resolu- April No. tion 5-81 and the results of its ref- enjoined erendum null and void certifying the referendum results to the Wisconsin Sec- retary Fitchburg appealed petitioned of State. bypass appeals pursuant the court of to sec. 808.05 and (Rule) 809.60, granted petition Stats. We *3 bypass. 24, 1980, petition requesting incorpo-
On March
an
Fitchburg
ration
60.81, Stats.,
referendum for
under sec.
Fitchburg
was
petition
filed with the
Town Clerk. The
signed by 2,167 persons
was
who owned real estate in
Fitchburg.
31, 1980,
Fitchburg
On March
Town
adopted
Board
Resolution No. 9-80 which scheduled a
sec. 60.81
8,
referendum for
1980.
June
procedures
The resolution established notice
and set
forth
proposed city.1
wards
boundaries for the
enjoin
(Madison)
Madison
sued to
the referen-
granted
dum.
injunction.
The circuit court
Ulti-
mately, however, this
injunction,
court vacated the
hold-
ing
personal jurisdiction
that the trial court lacked
over
Fitchburg.
Incorporation
Fitchburg,
re
Town
Wis. 2d
Subsequently, Fitchburg passed Town Board Reso- lution 60.81, Stats., No. 5-81 which rescheduled the sec. 1 Fitchburg incorporation proceeding also initiated an in Dane county pursuant Chapter 66, circuit court Stats. April referendum for 7, 1981.2 Madison and Russell brought Mueller then this action to invalidate the reso- enjoin April lution and 2, 1981, the referendum. On plaintiffs’ circuit court denied the motion for a tem- porary injunction. ordered, however, The court further majority that if the cast were in favor of in- votes corporation, ing enjoined certify- the town clerk was from Secretary the referendum results to the Wisconsin finally of State until it had been determined whether validly applied Fitchburg. 60.81 The referendum April Fitchburg was held as scheduled on 1981. The margin incorpo- 1,637 residents voted to 304 to city. rate aas
Following the referendum, the merits of the case were put summary before the circuit court on motions for judgment brought by both sides. The held circuit court standing that Madison has to maintain but this action question standing. did not reach the Russell Mueller’s Fitchburg The court further held that could not use sec. “ incorporate ‘adjacent 60.81, Stats., to because it is not ” May to a 21, 1982, first class.’ On the court declaratory judgment entered a and order which invali- dated Resolution No. 5-81 and the referendum results permanently enjoined certifying Secretary referendum results to the Wisconsin of State. Fitchburg appealed. presented appeal: (1) There are two issues on standing whether Madison and Russell Mueller have *4 declaratory (2) judgment, maintain this action for incorporation procedures whether the in set forth sec. Fitchburg. 60.81, Stats., are available to the residents of 2 provided Resolution No. 5-81 the form of the ballot would city” “against city.” be “for a addition, a In the number and Fitchburg proposed city boundaries of wards for the as set forth in incorporated Resolution No. 9-80 were in reference Resolution No. 5-81.
228
I. declaratory judgment properly a maintain order to “ controversy— justiciable action, ‘[tjhere exist a must say: that is to “ right is as- ‘(1) controversy a claim of in which A contesting it. against has an interest
serted
one who
“ ‘
persons whose
controversy
(2)
between
must be
interests are adverse.
“
seeking declaratory
must have
relief
£(3)
party
say,
legal
controversy
a le
a
interest
in the
—that
gally protectible interest.
“ ‘
controversy
be
must
(4)
involved in the
The issue
”
Bunderson, 107
Loy v.
judicial
ripe for
determination.’
; Klaus v.
(1982)
410,
N.W.2d 186 1056, 1064, 236 N.W.2d challenges standing ground on the Madison’s legal in the sec. it does not have a interest 66,3 Chapter
Stats., incorporation proceeding. Unlike may parties Chapter Neighboring municipalities become 66.014(6), pursuant 66, Stats., proceeding provides: which *5 grant specifically standing sec. 60.81 not neigh- does to boring municipalities. According Fitchburg, previously court has that decided without such a stand- ing provision cannot maintain prevent an action to adjacent the electors choosing of an town from to incor- porate.
In Freenfield, Schatzman v. 77 N.W.2d Wis. brought seeking (1956), plaintiff an action enjoin by an the town of referendum petitioned Greenfield. The Milwaukee leave claiming interpleaded, it intervene and be that had a controversy. substantial stake in the al- Milwaukee’s leged in the interests action were as follows: It had begun areas; already to annex certain town it servic- was ing extent; incorpora- those areas some Greenfield’s expansion; tion would thwart its property and it owned in the town. This court held that these did interests not make necessary party, Milwaukee a and, therefore, denying trial court petition. did err in We also suggested may that proper Milwaukee not have been a party to the action. essentially question in Mil
We
the same
considered
Creek,
waukee v.
2d
Oak
Fitchburg Oak that under Greenfield standing ac- maintain this Creek, is without Madison compel such a disagree. do not tion. Those cases We decisions, and Creek the Oak result.4 Since Greenfield standing liberalized. have been of Wisconsin rules Decade, PSC, 69 Inc. v. Environmental Wisconsin’s “the 1, 13, (1975), we held 230 243 2d N.W.2d Wis. standing construed should be in Wisconsin law of recently restrictively.”5 narrowly have Indeed we or trifling may recognized sufficient interest be that even a standing. v. National Bank First to confer State ex rel. Bank, 303, 309, Peoples 2d 290 N.W.2d M I 95 & Wis. not sufficient (1980). Thus which were 321 interests standing and Oak Creek when establish Greenfield may party an action maintain were decided enable a standing. of under current notions controversy as in this Madison has the same interests property in Fitch- had in It owns Milwaukee Greenfield: 4 suggested standing policy favor for It has been concerns proceeding. incorporation neighboring One a suburban “[C]ertainly commentator should au stated: central be any incorporation litigate, legality suburban thorized within a reasonable of its boundaries. Contra: Schatz distance Greenfield, man v. 273 Wis. 77 511 Other N.W.2d may wise, assumedly incorporation il a rural area not entitled to legally willing incorporate long so as local is to contest no citizen only objecting neighboring party it in is the court. Often by probable expansion through be blocked whose annexation will illegal Cutler, assumedly incorporation.” R. Characteristics of Expansion Required Incorporation Municipality, For or Land aof 6, 26 1958 Wis. L. Rev. 70. n. Decade, Although PSC, Environmental v. Wisconsin’s Inc. (1975), standing Wis. 2d involved under N.W.2d Chapter provisions 227, Stats., administrative the hold review ing equally applicable is context this case. burg; proceedings parts it has instituted annexation Fitchburg Fitchburg; receive services residents certain facilities; and Madison make use of Madison’s Fitchburg’s growth incorporation hinder will Madison’s by precluding Fitchburg future area. annexation however, Madison’s stake limited to not, case these interests. The under Stats., extinguish 60.81, would extraterri- Madison’s zoning plat jurisdiction approval torial in the Fitch- burg powers, area. These which are conferred secs. (7a), 236.02(2), 62.23 enable Madison protect itself from land hazardous uses undesirable *7 within corporate three miles of its limits. Madison’s jurisdiction limited, extraterritorial is to unin- however, corporated Fitchburg Thus, lands sec. 66.32.6 if be- city, precluded regulating a comes Madison will be from general land use for its welfare within this extraterri- torial zone. protecting
Madison an also has interest its classification If status. Madison were elevated a city of class, the second class to the first it would be re- quired changes governmental to make in its structure operations. Although Fitchburg attempt not to does force class, Madison to become a the first its incorporate 60.81, Stats., effort implies under sec. that Madison has reached that status. that, together,
We conclude taken the aforementioned personal interests establish that has Madison stake in 66.32, Stats., provides: Sec. powers. granted powers “Extraterritorial The extraterritorial villages by 62.23(2) statute, including 30.745, cities and ss. (7a), 66.052, 236.10, 146.10 and shall not be exercised with- corporate village. in the limits of another Wherever such statutory powers jurisdiction overlap, extraterritorial shall overlapping points over said shall be divided line all area on a equidistant municipality of which are from the boundaries of each municipality concerned so that more one shall exer- than power any cise such over area.” Therefore, controversy. under the the outcome this standing may properly maintain current Madison law action. this standing.
Fitchburg Mueller’s also contests Russell legal in this interest that he Mueller contends has controversy by incorporating under sec. because deprive opportunity him the Stats., will proceedings participate pending incorporation in the that maintains sev- Chapter 66. Mueller further under by Fitchburg in irregularities procedural eral committed process in- implementing the 60.81 jured joins in the asser- Lastly, Mueller Madison him. IV, 23 and Sections tion sec. 60.81 violates Article assuming these Even 31 of Wisconsin Constitution. legal allegations con- would establish a interest7 standing troversy, find that is without we Mueller standing dependent Mueller's maintain this action. Fitchburg. being upon Before this case his resident of court, out of to the trial Mueller moved was submitted Fitchburg. standing Therefore, claim was ex- his tinguished.
Having standing party determined one has action, maintain turn to the merits. we next
II. Stats.,8 special a establishes Sec. statutory satisfy
procedure re- which certain for towns 7 by alleged whether as We do not decide interests such these standing. Mueller would confer 60.81, Stats., general which the incor Sec. is distinct poration procedure Chapter provides: under may (1) cities. the “60.81 Towns become Petition. Whenever by any population 5,000 the resident exceeds as shown of town by provided census or a census herein for and last federal city equalized adjacent to a of the first class and an contains quirements. requirements The of 60.81 are fol- as population lows : The town must have a resident exceed- ing 5,000; adjacent class; a must be of first the petition $20,000,000 pre- valuation excess and a been in of has by signed persons, sented and or more each an elector and taxpayer town, petition and, thereto, of said said con- addition signatures tains the at of the of real of least one-half owners requests ques- petition estate in of the town which submission said tion to the electors of the clerk of the town and is filed with the town, procedure becoming the ior fourth class is initiated. a regular meeting the At of town the next (2) Referendum. board, by provide said a referen- town board shall resolution by dum the electors of said the resolution shall observe town. requirements 5.15(1) (2) s. num- of and shall determine the proposed city, bers and boundaries of of the time each ward the voting, adop- which shall not be earlier than 6 weeks after the may tion of said resolution and that a cen- said resolution direct territory may sus population be taken the resident as of such it day previous be on some not more than the 10 weeks date of election, family exhibiting every person every the name of head of a good the name of a such terri- resident faith of tory day, quarter on such and the on lot or section of land which resides, person he which shall be verified affidavit of taking the same affixed thereto. (3) Notice of the shall Notice referendum referendum. given by publication newspaper pub- be of the resolution in a town, one, newspaper lished in if such there be otherwise des- ignated resolution, weeks, in the once a for 4 week successive publication first to be not more than before the referen- weeks dum. procedure. (4) Voting The referendum shall be conducted in supervisors the same manner as elections for of the town board. question appearing The . . . on the ballot shall be “Shall town city?”. question appear become a 4th class Below shall squares. city” square appear To left of one shall “For words square appear left of to the the other shall the words “Against city”. inspectors make to the clerk shall a return of such town. incorporation. majority If a of the votes (5) Certificate are secretary certify cast in of a favor the clerk shall the fact to the state, together any, with the result of the census if copies description legal and 4 of a boundaries of the town *9 exceeding $20,000,000; equalized an valuation
must have incorporation referendum petition requesting an and a persons are both signed by who at must be least secretary whereupon state copies plat thereof, the of a and incorporation, the same record issue a certificate of and shall description and purpose. copies kept a book for that Two depart- secretary plat by to the shall be forwarded the of state department transportation copy of revenue. one to the ment and City powees. city incorporated thence- (6) Every shall thus privi- powers body corporate politic, and the with forth be a leges municipal corporation law and conferred at common by ch. 62. Existing territory (7) the in force Ordinances ordinances. any part thereof, with ch. shall or far not inconsistent so as repealed. continue in force until altered or embracing (8) Interim officers. All of the town officers powers city territory incorporated shall in their thus as continue meeting of the common and duties as theretofore until the first city quorum present. clerk shall council at which a Until qualified papers have of office and other been chosen all oaths filed, petition clerk, was with shall be filed with the whom city petition he who clerk when shall deliver them with the qualified. shall have days (9) election. Within 10 after First petition city, which the was filed the board with the clerk of designate polling election, shall fix a time for the first place places, inspectors place. and name election for each by days’ previous given Ten shall be the clerk notice of election by publication newspapers (3) in the under sub. selected posting public places city. give notices in 3 in the Failure to such con- notice does not invalidate the election. The election shall be prescribed by 12, except registration ducted as is chs. 5 to that no inspectors required. of voters shall be shall make returns to shall, election, the board which within one week after the canvass notify the returns and declare the The clerk shall result. officers-elect and issue certificates of election. If the first election Tuesday April is on the first com- officers elected shall so regular term, mence and hold their offices as for a as shall also appointees. they days their Otherwise shall commence within 10 regular qualification and hold until the election and the successors, appointees expire their and the term of their shall as qualify.” soon as successors *10 taxpayers by electors and of town and at least one- half excep- of the town’s real estate owners. With one tion, agree Fitchburg parties require- meets the only dispute ments of sec. 60.81. The in matter is Fitchburg “adjacent whether is to a of the first interpretation class.” Thus this case turns on the of statutory requirement. Wisconsin, four classes based cities are divided into consists population. 62.05, first class
on
Sec.
Stats.9 The
150,000
population
or more. Sec.
cities with a
change
city’s
provides
shall
62.05
that a
classification
class,
population places
(1)
it in a different
when
its
government,
provides
any necessary changes
(2) it
for
declaring
(3)
mayor
proclamation
and
when a
of the
according
change
published
law.
classification
is
(150,000)
requisite population
for
Madison
had the
has
not,
It has
how-
first-class
since at least 1968.
status
remaining procedures
ever, undertaken
neces-
the two
62.05, Stats., provides:
Sec.
four
(1)
be
into
“62.05
cities.
shall
divided
Classes
Cities
powers
corporate
as
for
and the exercise of
classes
administration
follows:
fifty
population
(a)
and
Cities of one hundred
thousand
of the first class.
over shall constitute
cities
(b)
thirty-nine
less than one hundred
Cities of
thousand and
fifty
population
the second class.
thousand
shall
cities of
constitute
thirty-nine
(c)
thousand
Cities of ten thousand
and less than
population
class.
shall constitute cities of the third
(d)
population
less than ten thousand
shall constitute
Cities of
cities of the fourth class.
(2) Population
by the last
federal
of cities shall be determined
city, except
census,
including
special
federal
taken of such
census
newly incorporated
provided
cities when a
is taken as
census
pass
law.
shall
from one
when such census
Cities
class to another
provisions
change
population
requires,
so
when
shows that
any necessary
government
duly made,
changes in
when
are
mayor, declaring
fact,
published
proclamation
is
ac-
cording
law.”
sary
change.10
we
Therefore,
effect a classification
of the first
have determined that Madison
Incorporation
In re
Town
class within sec. 62.05.
Fitchburg,
Although technically Madison does not have first- status, ipso class it does not follow facto that satisfy requirements has failed to Stats. consistently spirit This court or in has stated that *11 govern a literal tention of should over the statute meaning language Me technical of the used. Town of Skubitz, 430, nominee v. 53 Wis. 2d 192 887 437, N.W.2d ; Leicht, (1972) ex rel. Jackson v. 231 State Wis. ; Regents (1939) 285 335 Board v. Mussal N.W. lem, 657, 668, (1980). 94 Wis. 2d 801 289 N.W.2d attorney general aptly opinion
A discussed 1923 of the mean- the technical the distinction between intended ing city statutory to classifications. a reference population of Op. Atty. (1923). the Gen. city 10,000, had not the Point had exceeded but Stevens change necessary steps a from a fourth- to taken the Highway city. Commission third-class Wisconsin The city a Point was fourth-class asked whether Stevens still governing purposes apportionment of for statute attorney general bridge stated construction The costs. technically Stats., Point that under sec. Stevens city However, the at- remained a of the fourth class. torney general say that, a statute re- went when on always city’s it mean classification, fers to a does not Interpreting 62.05. technical classification of sec. 10° Attorney a asked whether In 1920 the Wisconsin General was change population automatically city’s in a classifica in a results correctly nega change. attorney general responded tion city’s tive, noting formal under the terms of the statute that Op. only changes all are met. when the conditions classification Atty. (1920). Gen. 476 purposes city technical sense for classification its city, bridge apportionment allow statute would cost status, qualifies by population for third-class which thereby change and decline to make the classification bridge appor- cost remain a class of the fourth attorney general not this was tionment. stated suggested Rather, legislature. he the intention of the by referring statute classifications ranges legislature contemplated of such population the stat- interpretation with classifications. This accords progressively apportion purpose ute’s intended —to bridge and their con- cities costs based on the size of that, ability pay. with Thus concluded comitant he bridge respect apportionment Stevens statute, cost to the class, not- Point considered a of the third should be withstanding The at- its technical fourth-class status. Atty. torney reasoning Op. general in 19 reaffirmed this Gen. 437 controlling
Although general opinions attorney are Op. Atty. (1923) precedent, that 12 Gen. 344 we believe analysis Accordingly, we con- of the law. correct legislature’s meaning clude that intended *12 Stats., 60.81, phrase “city the first class” within sec. of technical purposes its of that statute —over controls —for meaning sec. under 62.05.11 giving along with a law conditions rise to sought are in de-
problems the law to instructive cure Whyte legislative termining Foth v. Macomber & intent. Rope 549, 551-52, Co., N.W. 161 Wis. 11 meaning of a in most cases the intended It must be noted that formal,
city classi not differ from the technical classification does great majority references under Stats. fication sec. relating in the administration the class of a are statutes to to ordinarily city’s corporate powers. Such statutes and exercise of a contemplate classification. formal Therefore, construing 60.81, Stats., sec. we turn to its historical context. following II,
For more than a decade War World throughout experienced urban areas the United States z population.12 vast increases in metro The Milwaukee politan grew rapidly during resulting period, area this annexations, in a wave of consolida incorporations, and changes “jigsaw” tions. These often boun resulted dary neigh disputes lines and caused between numerous boring municipalities. adjacent to Residents towns frequently city’s Milwaukee resisted the annexation ef preserve government forts. To their local and commu nity many sought identity, incorporate. The towns attempts conflict between these suburban great and annexation Milwaukee’s efforts resulted in costly, litigation uncertainty. protracted deal of Meanwhile, population as the in of these suburban areas creased, governments the local with were faced new problems. govern their However, rural-oriented town system properly equipped ment was not handle the government effects urbanization. A structure was needed. quickly problems stemming
In an effort solve the rapid government growth, from Milwaukee’s local offi- cials areas such as the town Oak Creek worked change governing incorporation. the laws aAs re- sult, 60.81, Stats., which is sometimes called the Oak law, Creek was enacted in 1955.13 Sec. 60.81 was de- signed bring stability, certainty, an end to the bickering litigation between Milwaukee and the con- tiguous accomplish towns. objectives, In order to these provided special incorporation the statute mechanism for such suburban communities. 1 2 For a discussion historical area events the Milwaukee
during period, Cutler, see: R. 1958 Wis. L. Rev. 7-9. at 1955, Chapter Laws 500. *13 60.81, legislative Stats., solution short sec. the was unique facing adjacent problems populous the towns large giving the As cities. the conditions rise suggest, city the statute it a which creates is the size of special procedures for of sec. need the technically city 60.81, of the first not whether the govern- mayoral proclamation and Indeed, class. the change changes necessary un- mental for a classification legis- 62.05, problems are der sec. irrelevant to the Moreover, sought through un- lature to cure 60.81. sec. requirement, are population two conditions like these Clearly through city governmental satisfied action. legislature popula- with a did not to allow a intend 150,000 purpose of sec. tion of or more to frustrate the necessary refusing steps effect 60.81 take change. we Therefore, conclude formal classification legislature phrase “adjacent to a that intended to be reference of the first class” within 60.81 sec. 150,000 population more. to cities with a 150,000. population earlier, exceeds noted Madison’s As 60.81, Stats., purposes Madison is Thus for of sec. though formally at- it even has first class within 62.05. We conclude tained status sec. incorpora- requirements for has satisfied the under sec. 60.81. tion Stats., however, plaintiffs, contend that 31,15 of IV, 2314 and Sections
is invalid under Article provides: IV, Article the Wisconsin Constitution Section government. county Nov. amended 23. [As “Town Section April 1962, April legislature establish 1969 and shall 1972J[ nearly system government, uni- be as which shall but one town may provide elec- practicable; legislature as but the form large every years of a executive officer tion at chief once as any county powers character of an administrative such with prescribe may accordance with they to time from time
240 reaching' the merits Constitution. Without Wisconsin attack, that it must
of
constitutional
we conclude
this
standing
plaintiffs.
part
fail
lack
of both
of
on
already
Mueller
is
We have
determined
Russell
standing
Madi
without
lawsuit. While
to maintain the
standing
bring
action,
son
it cannot raise
has
to
this
mu
that a
this constitutional
issue.
It
well settled
is
being
nicipality,
legislature, does not
a creature
of
constitutionality
legal
challenge
capacity
of
have
540, 544,
City
Ayers,
a statute.
Madison v.
85
2dWis.
of
Village
;
v.
(1978)
271
101
Town Germantown
N.W.2d
of
Germantown,
704,
are larities, is also without merit. incorporate un- is entitled
We hold der sec. Stats. *15 Declaratory judgment order re-
By the Court. — versed. majority has
HEFFERNAN, (dissenting). The J. underlying Fitchburg’s claimed gullibly given credence to dis- right incorporate been that should have to claim—a missed out of hand as frivolous. thought- agree completely
I Abrahamson’s with Justice majority dissent, the but she takes ful and well crafted frivolity opinion mir- seriously. majority of the too The and deserves the of the town’s claim rors frivolousness community legal public the for be treated the absurdity the it is. degree only to the
I from differ Justice Abrahamson ig- majority’s that she that the error stems asserts compelled noring language I of the statute. am the literal literalness, but problem that is not one of to conclude the literacy. majority’s defies the ex- The conclusion of legislature un- pressed a common sense will of the language. derstanding English I dissent. A ABRAHAMSON, {dissenting). J.
SHIRLEY S.
up
sprang
crop
bumperstickers
years ago, a new
few
bumperstickers car-
These
and its environs.
Madison
message
judiciary: FREE FITCHBURG.
ried a
message
In
majority apparently
to heart.
took
The
grasp
from the
zeal to
the Town of
its
free
Fitchburg in-
city Madison and to liberate
second-class
majority
hav-
city-dom,
court from
also freed this
ing
disagrees
apply
a
and from
statute with which it
adhering
prior opinion.
to its own
majority
“adjacent
statutory phrase
reads the
class,” appearing
of the first
in sec.
ifas
legislature
“adjacent
popu-
had written
to a
with a
150,000
(supra,
239),
though
lation
p.
or more”
even
legislature
provided
city’s
has
first-class clas-
dependent solely
population.
sification
is
on
62.-
Sec.
05(2) provides:
pass
“.
.. Cities
from one class to
shall
change
another when
census
shows
[the]
population
requires,
provisions
any necessary
when
so
for
changes
government
duly
proc-
made,
are
and when a
mayor, declaring
fact,
published
lamation
ac-
cording
(Emphasis
to law.”
added.)
interpreting
a statute
the function of
court is to
ascertain and
legislature.
effectuate the intention of the
legislative intention,
as reflected in the clear words
62.05(2),
is that Madison is not a first-class
purposes
of sec. 60.81. To overcome the clear words
*16
of
majority
secs. 60.81 and
apparently adopts
the
statutory
aas
canon of
spirit
construction that “the
or
govern
intention of a statute should
over the literal or
meaning
language
technical
Supra, p.
of the
used.”
236.
majority attempts
The
to derive this canon from the
Leicht, Skubitz,
cases,
and Mussallem
the last
two of
which rest on Leicht. These
not
cases do
stand for the
proposition
guided
by
this court can be
the statute’s
“spirit”
ignore
when it chooses to
the statute’s words.
statutory
These three cases set forth the canon of
con-
invariably
struction this court
uses: when the literal
language of
ambiguous,
the statute is
thwarts the mani-
purpose
statute,
absurd,
fest
or leads to an
unrea-
unjust
result, obscurity
sonable,
meaning
or
of
exists
calling
judicial
for
construction. State ex rel.
v.
Jackson
Leicht,
183-85,
manifest meaning has its rule, rule which plain Thus sult. invari including myself, which court critics,1 but Society v.Wis. ably uses, see The State Historical of governs. today, If there Bluff,2 Village Maple decided rule, it. application this is for ever was a situation attempt to es fails to the court even I am concerned that statutory approach problem of tablish a coherent Society interpretation. Historical case the State This legislators. lawyers help case cannot but confuse language majority opinion ignoring the literal ambiguous, statute thwarts renders the statutes legislative purpose, the manifest an absurd and reaches majority opinion result. The result of that Madi- son, majority recognizes which as a of the second class, purposes becomes a of sec. 60.- first-class Although majority 81. of its tries to limit the effect opinion reasoning opens (n. 11), its the courts’ doors those make who wish to Madison class for first statutory purposes, other who as well as those wish change cities classifications of other without com- 1 Murphy, “Plain-Meaning Old Maxims Never Die: Rule” Statutory Interpretation Courts, in the “Modern” Federal Colum. L. Eev. any question statutory construction, inquiry “On the initial plain meaning unambigu is to the of the statute. If the statute is ous, judicial interpretation rules resort and construction is permitted, given and the words of the statute must he their meaning. Savings and intended Bankers Ass’n v. Mut. obvious Wis. *17 450, (1980).” Loan, & 96 Wis. 2d 291 N.W.2d 112 2d 869 Wis. 246, 252-253, 792 N.W.2d
plying procedures 62.05(2).3 with the forth in sec. set There are at least eleven that meet the fourth-class cities population standards of and at third-class cities4 least two third-class cities that population meet the standards of second-class cities.5 1981-82 Blue of Wis- Book, State Indeed, Fitchburg may consin. even more liberated be be; than it incorporate wants to it as a fourth- intends city, requisite class population but it has the to be city. great opinion third-class This will cause court’s deal of confusion, as the amicus of the curiae brief League of Municipalities points Wisconsin out.
If may, contrary meaning rule, court plain this to the look persuasive outside the statute to see if evi- there is legislative dence of a clear intention different from that ordinary reading to which an plain words of the lead, may, statute would and I think it I conclude legislative history guide in this case would not interpretation Johnson, court adopted. to the it See Experience Wisconsin with State-Level Review Mu- nicipal Incorporations, Consolidations, Annexations, 462; Cutler, L. Rev. Wis. Characteristics Land Required Incorporation Expansion Municipal- for ity, 6; 694; 1958 Wis. L. Rev. 1977 A.B. 1979 A.B. Sen. Amend. 28. 3 See, e.g., 6.78(1) 48.64(1) (library (polls); board); (size wards); 62.13(7), (7m) (compensation 62.08 to and days police officers); rest 62.13(11a) (fire department for platoons); 62.23(7a) (a) (extraterritorial zoning); (state 86.32 bridges); (plumbers waterworks); aid for 146.05 for 213.13 (rest days firefighters); (extraterritorial plat ap 236.02 proval) ; (bid 985.06(1) advertisements). pop. Dam, 14,149; Franklin, pop. Menomonie, Beaver 16,871; pop. 12,769; pop. Mequon, 16,193; Middleton, pop. 11,779; Monroe, pop. 10,027; Creek, pop. 16,932; Francis, pop. 10,066; Oak St. pop. Milwaukee, 21,228; Prairie, pop. 12,931; South Sun White
water, pop. 11,520. Claire, pop. 51,509; pop. Eau Waukesha, 50,319.
245 opinion, Finally, majority I, like the I read this before case, thought had de- court this court trial Incorporation in In re Town the issue in this cided case 3, Fitchburg, 2d n. N.W.2d Wis. (1980). we concurred with we stated that case purposes that for the trial court which had determined a interpreting City Madison not sec. 60.81 is “the n. 3. 2d at 644 and class.” See 98 first Wis. Fitchburg Although in the first this court’s statement primary “was in the it case, case did not decide the issue germane plainly . . ‘when a court to that issue and . discusses, intentionally up, takes and decides last resort necessarily of, germane though question to, decisive controversy, dictum decision not a but is such recog- judicial thereafter act the court which it will ” Kruse, binding 2d v. 101 Wis. nize as decision.’ State ought 387, 392, abide N.W.2d We first case. our decision reasons, foregoing I For the dissent. Justice Bruce
I authorized to state that Chief am joins in this dissent. Beilfuss