State ex rel. Rock v. Taylor

Pinney, J. Subsequent to the rendition of the judgment appealed from, in In re Village of North Milwaukee, 93 Wis. 616, this court held that the provisions of the statutes (secs. 854-866, S. & B. Ann. Stats.) for the incorporation of villages were unconstitutional and void. Whether, upon this proceeding by mandamus, it is open to the appellant to attack the validity of such proceedings for that reason, inasmuch as the relator, the president of the village, seeks, on its behalf, to establish a title in it to part of the common property by virtue of such proceedings, it is not necessary to determine, nor whether the village of Pardeeville could become a municipal corporation defacto, under such unconstitutional statute, and as such might sustain this claim to a mandamus for a division of the property in question. As there was no brief or argument on the part of the respondent, in view of the importance of these questions we decline to determine them on this appeal. The circuit court committed a serious error in holding that the village of Pardeeville had become and was a sepa [270] rate and independent municipality, although said village and the town of Wyocena had not, by a separate vote of each, determined to become such separate and independent municipalities, pursuant to secs. 1-3, ch. 341, Laws of 1889. This court has held, since the rendition of the judgment appealed from, in the case of State ex rel. Nye v. Weingarten, 92 Wis. 599, that a village incorporated since the enactment of ch. 341 of the Laws of 1889 cannot be considered an independent municipality from the town in which it is situate until said village and town have so determined by a separate majority vote of each as therein provided, and that the election by such village of an assessor will not suffice for that purpose. Until they have so determined, no proceeding can be maintained, under sec. 4 of the act, to compel an appraisement and division of the common property. For this reason, if it should be conceded that the village of Pardeeville became a municipal corporation dé jure or de facto, the award of a peremptory mandamus cannot be sustained. By the Court.— The judgment of the circuit court is reversed, and the cause remanded to that court with directions to dismiss the proceedings.