197 Wis. 163 | Wis. | 1928
The trial court entered two orders in a proceeding for the incorporation of the village of Chenequa: one striking out the objections of the town of Merton to the sufficiency of the petition, and the' other incorporating the village. From the first order the town of Merton appeals, and from the second the town of Merton, Mary Gibson, and Charles Gibson separately appeal. The defendants Gibson appeared at the hearing on the petition and filed objec
The errors assigned are: (1) The court erred in striking the objections of the town of Merton; (2) the court erred in finding that the petition for incorporation was signed by five taxpayers and residents in good faith of the territory sought to be incorporated; (3) the court erred in finding that the territory sought to be incorporated had the characteristics requisite to authorize incorporation under the constitution of Wisconsin; (4) the court erred in finding that the area did not include lands which were not reasonably appurtenant and necessary for future growth; (5) the court erred in making the order incorporating the village; (6) the court erred in excluding evidence.
The statutes involved are printed in the margin.
The legislature has power to make all laws not in contravention of the state or federal constitutions. Bushnell v. Beloit, 10 Wis. 155; Field v. People, 3 Ill. 79; Northwestern Nat. Bank v. Superior, 103 Wis. 43, 45, 79 N. W. 54; Nitka v. Western Union Tel. Co. 149 Wis. 106, 110, 135 N. W. 492; Pauly v. Keebler, 175 Wis. 428, 439, 185 N. W. 554. Within such limits it may create municipal corporations, and alter them, at will. See State ex rel. Zilisch v. Auer, post, p. 284, 221 N. W. 860, 223 N. W. 123. There can be little doubt that the legislation in question here is valid. The real question presented is whether the statutes were complied with in organizing the village of Chenequa.
The statute provides for the filing of a petition by five or more resident taxpayers within the proposed village limits for the incorporation of the village and for a public hearing
The second question raised is whether the petition for incorporation was signed by the requisite five taxpayers, residents in good faith, of the territory sought to be incorporated. The petition was signed by eight persons. One, it is admitted, was duly qualified. The others were formerly residents of the city of Milwaukee, residing therein in rented quarters or in hotels. Each of them owned a residence in the proposed village limits which was suitable for all-year-round residential purposes, and each lived within such proposed village limits in such residence the major portion of the year. Each had a place of business in the city of Milwaukee, and went to and fro more or less regularly during that time to attend to his business. Prior to the signing of the petition the petitioners considered the matter of changing their legal residence or domicile from the city of Milwaukee to the proposed village. They each concluded to do this. Each notified the income tax assessor of his purpose
“In what we have said we do not wish to be understood as denying the right of the deceased to freely change his residence at will and for no other reason than to escape taxation in Wisconsin, and the right to choose another residence implies the right to declare his choice even for the sole purpose of making evidence to prove what his choice was. ‘Such declarations are not self-serving in an improper sense, unless they are made with intent to deceive. If they are false and made for a sinister purpose, they will meet the fate that falsehood always meets in courts of justice when discovered by the triers of fact’ Matter of Newcomb, 192 N. Y. 238, 252, 84 N. E. 950.”
It is admitted that the territory contains over two hundred bona fide residents. The vote taken resulted in 189 for incorporation to 14 against. The inhabitants, as claimed by petitioners, number 485. With such a condition existing, it can hardly be conceived that reputable citizens would take a false oath to a petition when it would be so easy to secure the requisite petitioners of undoubted domicile in the district.
Next it is claimed that the territory included within the proposed village did not have the distinctive characteristics of a village, and the court erred in finding that it had such characteristics. This proposition presents questions of fact, and, it may be conceded, troublesome questions of fact. Some similar questions were presented in State ex rel. Holland v. Lammers, 113 Wis. 398, 86 N. W. 677, 89 N. W. 501, and also in Fenton v. Ryan, 140 Wis. 353, 122 N. W. 756, where the subject is elaborately treated. The appellants contend that the incorporation of the village is in violation of the constitution. The only provisions of the constitution in any wise applicable are secs. 31 and 32, art. IV. Sec. 31 provides that the legislature is prohibited from enacting any special or private laws in the following cases:
“The legislature shall provide general laws for the transaction of any business that may be prohibited by section thirty-one of this article, and all such laws shall be uniform in their operation throughout the state.”
We see nothing in either of these provisions of the constitution that has been infringed upon by the statutes affecting the incorporation of villages. True, the constitution does indicate that there shall be a village before it is incorporated, and the statutes are to the same effect, so it is argued that the framers of the constitution had in mind the characteristics of the villages and towns as they existed at the time of the framing of the constitution, and as they had existed in the Eastern states whére the framers of the constitution had formerly resided.
The constitution was made for an expanding future. The framers of the constitution were optimistic men who had come to the West with full faith in its future development. They could foresee and did foresee a wonderful growth and prosperity for this state. ' They had seen in their lifetime great changes in the means of transportation, such as steam railroads and steamboat navigation. They had witnessed the development of the telegraph and many modern inventions. In framing the constitution they used general and apt language to include not only the present but the future. The villages of today are unlike the villages of 1848 in many respects. Then a village consisted of a cluster of inhabitants centered around the village store, postoffice, blacksmith shop, and the town pump.' Usually a postoffice, a church, and a school house were part of the village. In those days the village store and the blacksmith shop catered to the necessities of the time. Now, however, the automobile
It is further contended that the area of .the village includes land not reasonably appurtenant or necessary for future growth.' The trial court found:
“The-area sought to be included in the incorporation is appurtenant to and necessary for the future growth and development of the proposed village, and has the distinctive characteristics of a village. The plat is compact, embraces 2,100 acres, and a reference to the topographical map at once convinces one that there is very little agricultural land within the area. The whole area is cursed with high steep hills some forty feet high, or pot-holes or depressions forty feet deep. Not even by the wildest stretch of imagination*172 could much of this land be called agricultural land, and this court is perfectly familiar with the area and has been for many years. A mere reference to the map on file in this case showing the timbered area, and which map I find is correct, shows that a very large portion of it is covered by a very heavy growth of timber, and that the land upon which the timber is situated is so rough that it is impossible to term it agricultural land.
“It is true that there is some agricultural land on the west and southwest side, but it is far from 1,200 acres as testified to by respondents’ witnesses. A reference to the map on file will at once convince any one of that fact. Whatever level land is on the west or southwest side is necessary for the proposed village. Either side is suitable for aero-plane landings or for the building of houses and garages. In five years nearly every one of these villagers^ will have aeroplanes.”
The general rule as to the effect to be given these findings of the trial court is stated in Will of Heymann, 190 Wis. 97, 103, 208 N. W. 913: “Upon a disputed question of fact this court will follow the findings of the trial court unless the decided preponderance of the evidence is to the contrary, or unless the trial court has not applied correct rules of law in the reception of evidence.” The evidence sufficiently sustains the finding of the trial court, under the rule stated.
This disposes of all the questions of importance raised on this appeal. The orders of the trial court must be sustained.
By the Court. — Orders affirmed.
“61.01. Any part of any town or towns not included in any village . . . may, upon application therefor by not less than five taxpayers and residents of such territory and upon compliance with the conditions of this chapter, become incorporated as a village.
“61.02. The persons intending to make the application for the incorporation of such village shall cause ... an accurate survey and map . . . They shall also cause to be taken an accurate census of the resident population of such territory as it may be on some day not more than ten weeks previous to the time of making such application, exhibiting the name of every head of a family' and the name of every person a resident in good faith of such territory on such day. ...”
“61.08. If the court, after such hearing, shall be satisfied . . . it shall make an order declaring that such territory . . . shall be an incorporated village by . . . if the electors thereof shall assent thereto as hereinafter provided; ...”
“61.10. If a majority of the votes cast at such meeting shall be against incorporation no further proceedings shall be had in respect to such incorporation under such application and order; but if a majority of such votes shall be in favor of incorporation the inhabitants of such territory shall, from the time of the recording of the order of the court aforesaid in the office- of the register of deeds, be deemed a body corporate by the name specified in such order.”