*1 . the Court.-—-The By the circuit judgment court is re- versed, with instructions to enter a judgment reversing of the civil court and judgment ordering dismissed.

City Plaintiff and v. Town Appellant, City others, Defendants: of Defendant and Interpleaded Respondent.*

September 10 October 1959. * denied, costs, rehearing Motion December $25 *2 Mattison, For the there were briefs Walter J. appellant Marussewski, Cook, Richard F. John F. city attorney, Odenbreit, assistant G. oral Harvey city attorneys, Mr. Mr. Marussewski. Cook and argument by For the there was a brief by Joseph Tierney E. respondent Grobschmidt, and Eugene H. and Kneeland city attorneys, *3 counsel, H. all A. and Walter Bender of of Milwau- Godfrey kee, Bender and Mr. Tierney. and oral Mr. argument by A search of the amended to see

Dieterich, J. what seeks interest Milwaukee has asserted on which it base its in this action to right set city of Oak Creek includes the following allegations forth in and 9 of paragraphs plaintiffs complaint: That, belief, “7. the defendant town information upon to ch. its officers

through Laws acting purportedly pursuant an attempt is purportedly proceeding as a city toward the of the town of Oak Creek of the fourth class. 29, 1955, a ordinance was

“8. That on July proposed introduced into the council of the plaintiff, city common Milwaukee, to annex a certain within the territory town Creek; ordinance was on Oak that proposed adopted 14, 1955; on that October October published said Milwaukee, 324 of the ordinance is ordinance No. plaintiff, city 1604—a; file No. that a

common council 55— thereof is marked copy attached hereto and ‘Exhibit A’ and that, a full; hereof as if in herein set forth part upon belief, information and A’ described ‘Exhibit territory and owned of Milwaukee was of the town part at Creek the time the to at- purported proceedings the town of tempt incorporate Oak Creek as commenced; fourth class were that the purportedly Milwaukee, was, to the time the to in- prior attempt the town of com- corporate Oak Creek was purportedly menced, and is now the lands owner in said described hereof; ‘Exhibit A' that the to annex the said proceedings territory described ‘Exhibit A’ were commenced prior to and were and were in reason pending being prosecuted faith at the time the good purported incorporation pro- of the town of Oak Creek were to be ceedings commenced, attempted believes;

so is informed and that the in ‘Exhibit A’ territory described became part of 19, 1955; such of Milwaukee October land annexed belief, to the information and upon included in territory purportedly attempted incorpo- rated as a class. fourth That, belief,

“9. information and a notice upon was posted sec. 62.07 of the published Wisconsin pursuant statutes an forth that annexation was to be setting circulated petition for the annexation of another certain territory to the Milwaukee; that certain the said territory described notice, the said belief, so plaintiff alleges upon information and that, . . ; was described as follows: . informa- belief, the tion and commenced to annex the area the town afore-described within and adja- cent of' Milwaukee to the city Milwaukee by *4 1955, 2, the of said notice August on which notice posting set forth that an annexation petition was circulated and involved, included an accurate of the description territory and was nine in the town posted public places of a and that such notice of was also copy published of a circulation within the general of newspaper county 4, 3, 1955, Milwaukee on and August on republished August that, 1955; belief, information and the content of the upon was as posted published said notice so on appears 106 hereto, a hereof part

‘Exhibit B’ attached which belief, that, full; if set forth in information and herein the a circulated for annexation of was caused be petition time in the aforesaid notice within the the described territory of the Wisconsin statutes.” sec. 62.07 provided The record discloses that at time the 19, 1957, the annexation of May proceedings complaint, 2, 1955, August which were started on Milwaukee had been pursued. 50, 63, Deer Milwaukee 274

In Brown v. Wis. (1956), 340, it is stated: W. (2d) cannot be for territory “. . . that from exempted long an- irresponsible consolidation posting competing notices, for in to hold its the annexa- nexation order priority, reasonable time. In re tion must within completed Deer, 481, 484, Brown 66 Village (2d) 333.” of the annexation notices The on posting August thereunder, failed to meet the priority the claiming and, therefore, was bar no requirement reasonable-time of the incorporation Oak Creek. certificate of The in the included Creek and territory

described and all area owned any excluded expressly in the annexation included ordinance of 15, it became December complete October of state issued certificate of secretary when Oak Creek. incorporators to include the area were not required In Village Milwaukee. re Oconomo owned by 97 N. W. 7 (2d) Lake Wis. (2d) woc (1959), Elm (1954), Grove and In re Village of N. W. (2d)

107 260.13, Stats., Sec. provides: party prosecute.

“Real in interest must ac- Every must prosecuted party tion be in the name of the in in- real . . .” terest

In the early case Robbins v. Deverill (1865), *142, *148, this court held that:

“The statute is that action must imperative, be every in the name of real in . . .” prosecuted party 72, also See Sawtelle v. 85 55 Ripley Wis. (1893), and Madison v. 211 Wisowaty Wis. (1933), seq., 27 et W.

The rule on in 11 subject this is stated Am. Con- Jur., Law, stitutional sec. Ill: p. law,

“One of the of constitutional elementary doctrines authorities, firmly is that established the constitution- of a act is to attack ality whose legislative open only by person thereby. are affected Before a law can be

rights assailed on the that is any unconstitu- person ground tional, he that must show he has an interest in the question in that the enforcement of the law would an infringe- on his ment Assailants must therefore rights. show the ap- statute and they that are plicability thereby injuriously affected. The burden of is claim proof those who them- how, them, selves harmed statute to show by' Thus, statute unconstitutional. one who invokes the power court an to declare act of congress unconstitu- must be able to show not only tional valid, that the statute is in- sustained, he has or is immediate

but danger direct as the some result sustaining, injury enforce- ment, and that he merely suffers some indefinite way common people generally.” Joint School v. Dist. Boyd (1955), 630, this 70 N. W. court said: (2d) *6 " can the law unless unconstitutionality 'No one plead he affected it.’ Van Appeal Dyke, by true, others 700. That is there though may it and therefore raise the might affected who question. Galles, 204 Construction Co. v. Verhelst W. 556.” interest of the

The or rights city plaintiff, the are in no affected of the way adversely by incorporation 60.81, Stats., under the of sec. city provisions real and therefore it not party required 260.13, and the demurrer on behalf of by sec. interposed defendant, Creek, to the Oak the city of interpleaded Milwaukee, is of the sustained. city decision, In all other become moot. questions view our the Court.—Order affirmed. By I dissent from (dissenting). respectfully Fairchild, J. has that the of Milwaukee not shown city the determination affected of the of interest type it Creek which would give standing this the latter. In court should my opinion proceed validity the case. the merits of consider has that it argues necessary The of Milwaukee its within the town property because of standing ownership of its and because to annex that property, and its proceeding commenced be- shortly annex other property, proceeding this tests majority fore the incorporation proceeding. 19, 1957, when an standing May as of of the city’s matter circumstances of was served. Under amended complaint time between the case, that the lapse opinion this is my not be counted should amended complaint original of Milwaukee. the city against the town commenced action was against This before of the completion and others on September and, fact, purpose the circuit preventing completion. June, court adverse to the of Milwaukee gave judgment appealed.

Counsel, one of now whom counsel for the appears here as amici curiae and appeared moved of Milwaukee be appeal dismissed that the of Oak Creek has been grounds (1) defendant, that there is re- party no existent (2) party that the of Milwaukee has not the spondent, (3) interest maintain the action or to requisite prosecute re- On we denied the motion appeal. April “in manded the cause to the circuit court the interests of *7 We said “Permission is to the justice.” granted Milwaukee, in the court below to interplead Oak Creek as a in interest without necessary party prejudice to the challenge validity organization after such of Oak Creek appropriate pleadings interpleader.” the same facts as original complaint alleged of Milwaukee as did the amended com- and the latter differed in that the of Oak

plaint, only was our order. joined pursuant not our denial of motion to dismiss was Probably then a which binding upon however, Milwaukee my having party. opinion, shown a sufficient standing so, occurred, do commencedthe action to it having

before lost that because not be deemed to have standing should circumstances before joinder time or change lapse as a defendant. of Oak Creek