143 Wis. 242 | Wis. | 1910
Tbe appellants, averring tbat tbey are owners of real estate forming part of tbe territory attempted to be annexed to tbe city of Keiuaunee, but not expressly stating-tbat tbey are taxpayers, allege tbat they brought this suit in equity for themselves and in behalf of all other property owners and taxpayers similarly situated. Tbe relief sought was to enjoin tbe city officers from0 levying,any tax upon tbe said real estate of tbe plaintiffs and from exercising any acts of jurisdiction over tbe territory sought to be annexed, and tbat tbe city clerk be enjoined from making out and delivering to tbe said treasurer a tax roll and tax warrant including said real estate of tbe plaintiffs therein, and tbat tbe city treasurer be enjoined from collecting or attempting to collect taxes on ■said lands, etc. Tbe wrong alleged to have been committed against plaintiffs is tbat tbe city attempted to annex certain described territory containing the lands of tbe plaintiffs and bring this within its corporate limits, but acted upon a petition which was not signed by a majority of tbe electors and tbe owners of one third of tbe taxable property in tbe district sought to be annexed according to tbe last tax roll including tbat district. Other alleged errors are tbat tbe petition for annexation purported to be signed by certain corporations which bad never authorized any person or persons to affix their several signatures, and tbat tbe ordinance of annexation “was not published in accordance with law;” also tbat the annexed territory was not adjacent to tbe city, was not necessary for building, street, or other municipal purposes, was almost exclusively agricultural lands sparsely settled or lands wholly unoccupied, and annexation was attempted to be made for the sole and only purpose of increasing tbe revenue of said city by taxing tbe property so annexed. It is also averred tbat tbe taxes of tbe plaintiffs will be increased by such annexation.
¡We do not thirds: the ruling of the learned circuit court can be supported on the ground that the plaintiffs have mistaken their remedy, or that the power of the court cannot be invoked to restrain the acts of municipal officers who attempt to proceed to the damage of the plaintiffs under an ordinance invalid for failure to comply with the statutory conditions precedent to the enactment of such ordinance. This is not a suit to arrest the act of legislation while in progress, but to restrain official acts attempted to be exercised under the authority of an invalid ordinance. The same question has been many times passed upon when officers are restrained from acting under an unconstitutional statute. In Chicago & N. W. R. Co. v. Langlade Co. 56 Wis. 614, 14 N. W. 844, in a suit in equity to set aside taxes, the validity of acts of the legislature changing the boundaries of a county and dividing it into towns and providing for their organization was examined into, but the case finally turned upon the point that the officers levying the tax were officers de facto and their official acts under these statutes could not be inquired into collatei*ally. In the instant case the plaintiffs seek to prevent alleged unlawful action under color of office. In Smith v. Sherry, 54 Wis. 114, 11 N. W. 465, which is an action for trespass to land, where the plaintiff claimed title under a tax deed, the acts of the county board in detaching territory from one town and adding it to another were examined into and
Cases like Stedman v. Berlin, 97 Wis. 505, 73 N. W. 57, or Linden L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493, 83 N. W. 851, and similar cases, are not in point here, for this suit is to restrain unauthorized action of municipal officers specially injurious to the plaintiff and his class and there is no other adequate remedy. Certiorari would not reach the question of the number of electors and landowners in the annexed district. Quo warranto is manifestly inappropriate, and, in short, the remedy is in equity, as amply .shown by the foregoing authorities.
“A majority of the electors and the owners of at least one-third of the taxable property according to the last tax roll, in the territory adjacent to such city may together present a petition to the common council of such city, asking for annexation thereto.”
Sec. 925 — 19, Stats. (1898), provides that “at any regular meeting of the common council after the filing of said petition with the city clerk an ordinance may be introduced providing for the annexation of such adjacent territory.” Sec. 925 — 17 provides that territory lying adjacent to any city may be annexed to such city in the manner thereinafter set forth. The pleading in this respect sufficiently negatived compliance with the statute on the part of the city attempting to make the annexation, and the statute makes such compliance a condition precedent to the exercise of the power of annexation.
Were this case to end here, a reversal of the judgment of the court below would be inevitable, but- sec. 925- — 21, Stats. (1898), relating to the same subject, declares:
“The adoption of said ordinance shall operate to annex such territory to said city and to the ward or wards designated therein ninety days after the same is passed and published. The validity of the proceedings annexing such territory shall not be called in question collaterally in any court of this state, nor be called in question in any other manner in any such court unless the action or proceeding therefor be commenced within ninety days after such ordinance is adopted.”
A somewhat similar statute prescribing the same length of time was construed and applied in Application of Clark, 135
Tbe complaint in this action avers “that since said pretended annexation of said territory to said city tbe assessor of tbe defendant city of Kewaunee has pretended to assess tbe real estate of said plaintiffs,” etc.; also, that tbe aldermen threaten and are about to levy taxes on said real estate, and that tbe city clerk threatens and is about to make out a tax roll and warrant. These averments relate to acts done pursuant to attempted' annexation which could only have been done after three months bad expired from tbe passage and publication of tbe ordinance. Tbe annexation is spoken of as a past fact; that is to say, acts are alleged to have occurred “since tbe pretended annexation.” How can we say that this means since tbe pretended passage of tbe ordinance? And yet, unless it means this, tbe complaint shows on its face that more than three months bad elapsed from tbe date of tbe passage and publication of tbe ordinance, because it showed that tbe pretended annexation bad been completed and existed as an accomplished fact, although not legally accomplished. Tbe answer pleads this short statute of limitations. Tbe oral demurrer does not of itself raise tbe defense of tbe statute of limitations. But tbe record returned on appeal prima facie shows that tbe appellant is in no wise aggrieved or injured by tbe dismissal of tbe complaint by tbe circuit court, because that same dismissal must inevitably result upon tbe facts now before us. Tbe statute forbids us to reverse in such case.
By the OouH. — Judgment affirmed, and cause remanded for further proceedings according to this opinion.
The following opinion was filed October 4, 1910:
TimliN, J. On motion for rehearing the plaintiffs contended that the statute limiting the time of attack to ninety days was unconstitutional on various grounds, inter alia that the preliminary publication required by sec. 925 — 19, Stats. (1898), had not been given or had not been properly given.
Jf this publication was not made that is a matter for the plaintiffs to set forth in avoidance of the statute in their amended complaint as specified in the opinion of the court. The plaintiffs should present this case on a proper complaint as indicated in the opinion, raising all the questions which they now seek to present on rehearing.
By the Court. — The motion for a rehearing is denied, with $25 costs.