*1 533 City others, Appellants, of Fond du Lac and v. Town * Lac, Fond No. du Respondent. [Case 214.] 12, 1964. January February * rehearing denied, costs, for Motion with on March $25 1964.
n For the there were appellants briefs St. Peter & Hauer, attorneys, St. George counsel, M. Peter of all of Fond du Lac, for the town Lac; of Fond du Sammond Foley, & Lardner, attorneys, Marvin B. Klitsner and Gilbert W. counsel, Church of Milwaukee, all of for the Kiekhaefer Corporation; and by Hirschboeck, Minaban, Whyte, Hard- *5 and Ed- C. Minaban Roger and Harlandattorneys,
& ing Milwaukee, counsel, for all of the D. Cleveland ward Mr, oral argument by and Company, International Paper Jkf; Mr, Mr, Cleveland, Mr. Church, and Klitsner, George St. Peter. brief argument was a and oral by
For the there respondent Buslee, city attorney. B. Henry on this raise four The Hallows, questions plaintiffs J. manner in void because of the annexation Is the (I) appeal: electors on the of the the majority the signatures which annexation is the city? secured the by (II) were petition was created within island of town territory void because electors therein from residing the in order to prevent the city was the annexation proceeding? (Ill) in the participating to annexation peti- owner entitled the sign city qualified initiate an annexation proceeding can a (IV) and tion? 66.021, ato Territory contiguous Stats.? sec. under A direct annexation. thereto by petition annexed bemay re- of the electors signed by majority with the city filed and the owners one half of the in such territory siding meets requirements such the territory in area within land The annexation completed was the (2) (a). by 66.021 sec. on of the annexation ordinance adoption July defendant’s (7) Sec. 66.021 (d). 1961. void because the
I. Is manner in which on the electors majority signatures secured city? were the city directly used economic plaintiffs argue pres-
The to the annexation in promoting agreeing give sure free rent to the Haensgens by threatening year’s eviction, oral agreement with indirectly by Zimphers from the Waldschmidts whom the had purchased with tenants, land obtain of its their signatures most The three electors. its on city justifies activities remaining *6 the “It as it wishes with as is the may do theory, property case with other owner” and use may persuasion any property to obtain favorable consideration of its position.
The
a
for annexation is more
of
than the
signing
petition
of a
or of
The
private
exercise
a
right
property right.
right
anof
elector to
in an annexation
participate
proceeding par-
takes of the nature of a.
to
right
political
“analogous
voting
must
“in-
upon
question”
therefore
be
elector’s
. .
dividual act
.
his
in
and in-
discharging
duty
shaping
fluencing this
affair of
DeBauche v.
particular
government.”
148, 153, 154,
Green Bay
227 Wis.
(1938),
A is campaign period anticipated sec. 66.021 by (4), Stats., which limits the commencement of the circulation of to a petition not less period than ten nor more than days twenty days after the date publication the notice of intention to circulate and requires to petition be filed within six months the date of publication. Discussion and debate an on issue the electors is of the democratic part but the process, use of economic pressure defendant interested in the outcome of the annexation to obtain favorable of the signatures in necessary electors this case is of government. process the political disregard a shocking and im- votes buying the equivalent The action was city’s of whether such bargaining regardless is true This proper. it. or during so-called campaign period took before the place on the ground be justified of the cannot The action as he one’s freedom to use property or the right a property owner, individual, city, or possesses No wishes. property threat elector to vote contract or induce by to right any because of an annexation sign or to way particular issue unrelated the political consideration economic special an elector is not to one cannot say persuade This involved. *7 in a in of his interest the outcome of general to favor vote fac- In former case the extraneous outside issue. the political of act and its destroys the integrity political tor defiles the case, the self-interest is In the latter pre-existing validity. of for one’s act. The four signatures motivation legitimate tenants, invalid. and are Haensgens the Zimphers, city’s the fails for these the want conceded without It is electors. the of the of majority signatures island the annexation void because an town II. Is in to within the order the city prevent was created territory the therein in annexation electors residing participating from proceeding? . line of the boundary
It is the annexed area was undisputed an so as create island 300 130 feet bounded by drawn to on sides the annexed and on the the territory by three north by and thus excluded the electors boundary living existing city’s claims it is within its discretion wholly therein. The to city lines of annexed boundary territory, “gerrymander” 32, 10 on Madison v. Monona (1960), Wis. (2d) relying 206, and In re Village 102 N. W. Oconomowoc (2d) 400, 97 N. 189. In Lake 7 Wis. W. (2d) (2d) (1959), we did not mean to imply word using “gerrymander” to lines of a boundary discretion determine was city and could into without limitations transcend wholly
541 action. The creation of the realm of arbitrary capricious and island is not be on use of extension to attempted justified any mains, services such and water as sewer governmental schools, or or fire of the or unsuitability police protection, or of the land to the creat- adaptability purpose city’s of an industrial from be area. Nor the record could it so ing justified.
This has court review the annexation of authority to ter or ritory to and the test of reason. This city village apply was first in principle announced Smith v. 50 Sherry (1880), 210, 561, Wis. 6 N. to W. of suit applied question l or ability land uses and needs in Wi adaptability city 483, 312, son v. 283 Sheboygan (1939), Wis. N. W. v. Milwaukee 273 Wis. (1956), Greenfield N. W. 909. The reason (2d) rule of to the applies exclusion of land internal island as consisting as well the inclusion of land the external The exclusion of boundaries. land by the creation of an island within the process of as must be as the inclusion reasonably justified the land around the island for needs and A purposes. in hole is doughnut natural but it must be so proved in a city.
The is not question whether the can have one only *8 continuous boundary line but whether the proposed boundary lines are in reasonable the sense they were fixed not arbitrari or in ly, the capriciously, abuse of discretion. This question in relation to the creation anof island was not in present Grove v. Blooming 342, Madison (1957), 275 Wis. 81 N. W. In (2d) 721. that case an island was created within the of city Madison by a town The excluding annexa park. tion was attacked unsuccessfully on the a ground town as a matter of law could not be divided by annexation into non- contiguous The parts. of issue the reasonableness or un reasonableness of the town excluding from park the annexed was not territory in issue. of small island from exclusion the bar the at
In the case contained two residences was which Kiekhaefer’s property electors therein from living participat- the solely preclude Such reason is not justifi- proceeding. in annexation the ing annexation of to develop to the the purpose or able germane an island within the Creating area. industrial a future of the success of the annexa- assuring the for solely purpose and an abuse capricious and action an arbitrary was tion the annexation. invalidates of and discretion owner entitled to sign a III. the city qualified Was petition? annexation an of a owner within the meaning held is have
We Stats., for may sign 66.021 (1) (a), sec. to itself under sec. territory of 66.021. annexation direct Madison Wis. City (1960), (2d) Madison v. Town of of Plaintiffs do not N. 264. (2d) 106 W. challenge not do contend the is qualified but record title city’s 66.021 This section (6). sec. required by provides as owner and owners for the of electors of purpose the qualifications of the shall be determined as date of the filing the petition The section further provides, “Residence and of the petition. be fide and for acquired bona not the pur- must ownership the annexation invalidating or defeating proceed- pose is silent on the for acquisition The statute land ings.” or an annexation commencing aiding proceeding. purpose have this court construe The would the words plaintiffs as of land for acquisition “bona prohibiting fide” or an annexation supporting furthering proceed- purpose elements, two The statute bona requires ing. fides defeating of the purpose proceed- absence of ownership or residence. Bona acquisition ing fide owner, Stats., in sec. 66.021 (a), defined as means the (1) in in fee possession the holder record estate simple estate, is in fact what the or lesser record him purports in to be. owners of record are not fact owners. Form Many does not of a without substance meet test qualified elector *9 or an owner under sec. 66.021. There is no the city question is in fact in the owner the annexed area property which it is held the record owner. The trial court correctly the motives in ir- were city acquiring property relevant on the issue bona fides. Can
IV. a initiate an annexation city under proceeding 66.021, sec. Stats. ?
The annexation in Town Madison v. proceeding City 100, Madison 12 Wis. 106 W. (1960), (2d) N. (2d) 264, 66.021, Stats., was commenced under sec. to prior 418, enactment of sec. 66.024 by ch. Laws of and the latter section was not considered. This section a permits city or to a village initiate to annex proceeding land contiguous thereto which contains electors by a resolution and passing an to the circuit court for an an making application order for annexation referendum. The be defeated application may by a filed in court and signed by majority or electors of more owners half by than one of the real in assessed value in property the territory. 66.024,
The plaintiffs Stats., contend sec. is the exclusive method which or village initiate may and in proceeding effect overrules our in holding Town of Madison, Madison City v. supra. We agree. do not In that case also we held that 66.025 not sec. was an exclusive method of annexation for a because the section city partly the method provided was “in addition to other methods law,” and provided by because of its partly limited applica- tion to territory owned wholly Likewise, city. of sec. introductory paragraph 66.024 states that the method therein provided is a “complete alternative to other any annexation procedure.” 66.024, 66.021 Stats.,
Secs. are not exclu- mutually sive, but sec. 66.024 does permit initiate an annexa- tion when it proceeding is not the owner of if any land there are electors in the But we territory. cannot read an intent of into legislature this section that a can no longer *10 owner and when it is an qualified 66.021 sec. under
proceed hold 66.024 is sec. not annexation. We a to sign institute which may method by exclusive land, if is the owner of invoke it may, A city proceedings. sec. 66.021. method provided reversed, with instruc- is judgment By Court.—The the ordi- judgment adjudging enter a declaratory tions to 27, 1961, Lac of Fond du on July the city nance adopted du from to the of Fond Lac certain territory annexing Lac, void. Fond du the town concur (concurring). We Wilkie, Fairchild JJ. result, on that signatures were ground in the but only obtained. improperly Reynolds, Governor, Relator, v. Zimmer ex rel.
State State, Respondent: Senate Secretary Panzer, man, tem, Speaker President pro Haase, Assembly, Respondents. Intervening 28, 1964. February
January 10