City of Wauwatosa v. City of Milwaukee

180 Wis. 310 | Wis. | 1923

Eschweiler, J.

Reliance in the. argument is placed by defendant appellant upon changes made in certain of the material statutes by ch. 242, Laws of 1921. Such amending law, however, expressly provided that it should not take effect until January 1, 1922. Being subsequent to1 the adoption of the ordinafice in question here in November, 1921, it cannot be considered as applicable, and the present case must be decided under the Statutes of 1919.

Defendant city relies upon the following statutes of 1919 found in ch. 64bb, the material parts of which we quote:

“Section 925 — 17. Territory lying adjacent to any city organized under the provisions of this chapter or adjacent to any city organized under a special charter which,” etc., “may be annexed to such city in the manner hereinafter set forth.”

“Section 925 — 18. A majority of the electors and the owners of at least one third of the taxable property according to the last tax roll, in territory adjacent to such city, may together present a petition to the common council of such city asking for’ annexation thereto.”

Defendant asserted that the language territory lying adjacent to any such city refers to and includes any and all territory within or without the then existing boundaries of another city so long as such territory is geographically adjacent to the annexing city.

The plaintiff asserts that the strip of land in question being at the time of the proposed annexation within the charter prescribed boundaries and therefore an integral part of the plaintiff, a city of the fourth class, could not be separated therefrom except with the consent of plaintiff’s common council pursuant to the provisions of the section found in the same chapter and under the general heading “Annexation and detachment of territory,” reading, so far as material, as follows:

“Detachment of territory. .' . . Section 925 — 21a. Upon the petition of a majority of property owners owning three fourths of the taxable real estate which it is prooosed to detach . . . within the corporate limits of a city of the . . . fourth class, whether incorporated under the provisions of this chapter or by special charter, and which said taxable property is within a section adjacent to the boundary lines of any such city, the common council may by 'ordinance detach such real estate from such city. Such ordinance shall require for its adoption the affirmatiye vote of three fourths of all the members of such common council and if so adopted the said property shall be detached from such city and attached to the town or towns to which the same shall be annexed and shall be taxable therein.”

In State ex rel. Shawano v. Engel, 171 Wis. 299, 177 N. W. 33, it was held that the described boundary lines of a city are substantial portions of its charter, and as much so as other provisions therein contained; and that any increase or diminution of such territory is in effect an amendment to its charter and therefore beyond even the power of the legislature to effect by special act, owing to the constitutional inhibition against such special legislation. Const., art. IV, sec. 31, sub. 9.

In view of the substantial right thus recognized in the plaintiff as a corporate entity to and over its corporate territory, the general language in secs. 925 — 17 and 925 — 18 covering the broad and general field of annexation of territory and referring to territory lying adjacent to any such city must properly be construed in connection with the express language of sec. 925 — 21a, supra, providing for the more limited field of detachment of municipal territory.

The two statutes, where the literal enforcement of the one clashes with the literal enforcement of the other, must be construed together and harmonized if possible, so as to permit effect to be given to each, and where such broad and general language is used in the one as would, if construed literally and separately as desired by defendant, nullify the evident purpose and express language of the other, it is our duty to prune down the literal language or possible broad construction of the one so as to leave vitality in the other. State ex rel. Time Ins. Co. v. Superior Court, 176 Wis. 269, 274, 186 N. W. 748.

So viewing these several statutes, we have no difficulty in reaching a conclusion in accord with that of the trial court. It is held that the strip of Wawfaatosa territory was not lawfully detached from that city and therefore not properly subject to the proceedings relied upon by defendant and did not become lawfully annexed to the city of Milwaukee.

By the Court. — Order affirmed. •