Zweifel v. City of Milwaukee

The following opinions were filed December 9, 1924: OwEN, J. It will be a sufficient statement of facts to say that this is an action in equity brought to test the validity of a certain ordinance adopted by the city council of the city of Milwaukee annexing certain territory to said city. The objections urged against the validity of the ordinance will appear as we proceed. The plaintiff is a taxpayer within the territory affected by the ordinance and brings this action in behalf of himself and all other resident electors and taxpayers within the annexed territory, under the authority of Lutien v. Kewaunee, 143 Wis. 242, 126 N. W. 662, 127 N. W. 942. The case comes here upon an appeal by the plaintiff from an order overruling a demurrer to the answer. The principal question in dispute is whether the city of Milwaukee, being a city organized under special charter, may proceed under the provisions of sec. 926 — 2, Stats, providing for the annexation of territory, without first adopting the provisions of secs. 925 — 17 to 925 — 21, inclusive, Stats., — 627 — being a part of the general city charter law. The city proceeded to annex the territory in the manner, provided by secs. 925 — 18 to 925 — 21 without adopting said provisions as a part of its charter. There is no question but that the proceedings were regular if the-city had power to act under-such provisions. That is the first question with which we are concerned. Ch. 40& of the Revised Statutes of 1898 is a special chapter relating to cities under special charters and consists of various provisions conferring municipal power upon such cities in addition to the powers conferred upon them by their respective special charters. The very first sentence of the first section of that chapter provides that “All cities incorporated by special act shall have the powers, privileges and franchises and be subject to the duties and liabilities in this chapter provided for.” Sec. 926 — 1, which is to be found in said ch. 40b, provides that: “For the exercise of corporate power and other appropriate purposes, and for convenience of legislation all cities incorporated under special charters shall be divided into classes as follows: Cities containing a population of one hundred and fifty thousand or over shall constitute the-first class; cities containing a population of forty thousand or over and under one hundred and fifty thousand, the second class; cities containing ten thousand or over and under forty thousand, the third class; cities containing less than ten thousand, the fourth class. The population as affecting the class to which any such city shall belong shall be determined by the last national or state census.” This classification of cities organized under special charter is in strict conformity to the classification of cities organized under the general charter law. Sec. 926 — 2, which immediately follows the section above quoted, provides that: “Territory lying adjacent to any city so incorporated [special charter] may be annexed to such city in the manner — 628 — provided by sections 925 — 17 to 925 — 21 inclusive; provided, that the petition required by section 925 — 18 shall be sufficient for the purposes therein mentioned if signed by one half of the resident electors and the owners of one half of the real estate within the limits of the territory proposed to be annexed. Territory may also be detached from any such city in the manner prescribed by section 925 — 21 a.” Sec. 925 — 17 is a part of the general charter law and provides that: “Territory lying adjacent to any city organized under the provisions of this chapter or adjacent to any city organized under a special charter which, by ordinance, has declared such city to be of a certain class according to the provisions of section 925 — 1, and has adopted, in the manner provided by section 925 — 4, sections 925 — 17 to 925 — 21 inclusive, may be annexed to such city in the manner hereinafter set forth.” The manner of annexation is set forth in secs. 925 — 18 to 925 — 21, inclusive. As already stated, the manner thus prescribed was followed by the city in this instance. The question is whether before the city could proceed under secs. 925 — 18 to 925 — 21, inclusive, it was necessary for it, in accordance with the provisions of sec. 925 — 17, to declare by ordinance that the city of Milzmukee is of a certain class according to the provisions of sec. 925 — 1, and adopt, in the manner provided by sec. 925 — 4, secs. 925 — 17 to 925 — 21, inclusive, and thus bring it within the express provisions of sec. 925 — 17. Much space in the briefs of counsel is devoted to a consideration of the legislation bearing upon this question prior to the revision of 1898. A brief review thereof is not inappropriate and may.be somewhat helpful in arriving at a solution of the question. The general city charter law was enacted as ch. 326 of the Laws of 1889. As enacted it contained practically the same provisions that are now embodied in secs. 925 — 17 to 925 — 21 relating to the annexation of territory. The con — 629 — stitutional amendment which prohibited special legislation for incorporating any city or of amending the charter thereof (par. 9, sec. 31, art. IV, Const.) was adopted in November, 1892. After the adoption of that amendment the legislature was prohibited from enacting special laws annexing territory to cities whether organized under general or special charter. Cities organized under general charter could annex territory in the manner therein prescribed. There was no way, however, by which territory might be annexed to cities organized under special charter. The first legislative attention given to this matter appears to have been the enactment of ch. 214 of the Laws of 1893. As so enacted, its provisions were identical with the provisions of sec. 926 — 2, already quoted herein, with the exception of the last sentence. At that time the present sec. 925 — 17 simply provided that “Territory lying adjacent to any city organized under the provisions of this act may be annexed to such city in the manner hereinafter set forth.” At the time of the enactment of said ch. 214 of the Laws of 1893 the law did not provide that a city organized under special charter might adopt a portion of the general city charter law, although it did provide for the adoption by such cities of the entire law. The provision authorizing cities organized under special charter to adopt individual parts of the general city charter law was first enacted as sec. 72 of ch. 312 of the Laws of 1893, but this was after the enactment of ch. 214 of the Laws of 1893. It will therefore be seen that ch. 214 of the Laws of 1893 simply authorized cities organized under special charter to annex territory in the manner provided in the general charter law, and this continued to be the law until ch. 214 of the Laws of 1893 was repealed by ch. 245 of the Laws of 1895. That chapter amended what is now sec. 925 — 18 in certain respects immaterial here and expressly repealed ch. 214 of the Laws of 1893. The city attorney argues that the repeal of said ch. 214 of the Laws of 1893 was evidently a mistake — 630 — on the part of the legislature. But whether it was or not, it was effectually repealed nevertheless, and it is bootless for us to inquire whether the action was the result of a mistake. We do not think it was, because at that time cities organized under a special charter were authorized tO' adopt the provisions of the general charter law relating to the annexation of territory, so that the legislature might well have considered that there was ample statutory provision to enable cities organized under special charter to enlarge their boundaries. The next legislative action material here was the introduction in the legislature of 1897 of the so-called revision bill, which culminated in the Revised Statutes of 1898. This bill was drafted and prepared by Messrs. Sanborn & Berry-man pursuant to the provisions of sec. 2 of ch. 306 of the Laws of 1895, which appointed them “to prepare and report to the legislature of 1897, at the commencement of its first session, bills for the correction of such errors and to harmonize such discrepancies in the statutes as they shall deem advisable, together with such additional sections as they shall deem proper to carry out the general design and. spirit of the statutes.” This bill was introduced on the 21st day of January, 1897. The bill carried the present sec. 925 — 17 in the following language: “Territory lying adjacent to any city organized under this chapter may be annexed in the manner hereinafter set forth.” This is practically the original language to be found in sec. 17 of ch. 326 of the Laws of 1889, and was in the exact words in which that section then stood in the law of the state at the time the bill was introduced. The bill also contained the present section 926 — 2, in its present form and as heretofore quoted herein. It will be noted that at the time of the introduction of this revision bill said sec. 925 — 17 contained no provision relating to cities organized under special charter and that sec. 926 — 2 specifically authorized such cities to annex territory — 631 — in the manner prescribed by secs. 925 — 17 to 925 — 21, inclusive. The bill was referred to a joint committee on revision of statutes. During that same legislative session there was enacted ch. 138 of the Laws of 1897, by sec. 1 of which sec. 925 — 17 was amended to reach. “Territory lying adjacent to any city organized under the provisions of this act, or adjacent to any city organized under a special charter, which, by ordinance, has declared such city to be of a certain class, according to the provisions of section 1 of this act, and has adopted, in the manner provided by this act, chapter 4 of this act, may be annexed to such city in the manner hereinafter set forth.” This chapter became a law April 1, 1897. The revision bill remained in the hands of the joint committee on revision of statutes until the 17th day of August, 1897, when it was reported with amendments. In its report the committee said: “Your committee have- revised and incorporated by way of amendments, herewith submitted, all the general laws of 1897 except as hereinafter stated.” One of the amendments proposed was that made by ch. 138 of the Laws of 1897 to the present sec. 925 — 17. The amendment was adopted and sec. 925 — 17 as enacted in the revision bill was made to read as amended by ch. 138 of the Laws of 1897. Sec. 926 — 2 was, however, retained unchanged in the bill. As the bill was drafted and introduced, sec. 926 — 2 certainly conferred upon all cities organized under special charter the power to annex territory in the manner provided by the general charter law. If the effect thereof was changed at all it was by virtue of the amendment to sec. 925 — 17 made by ch. 138 of the Laws of 1897 and embodied in the revision bill, so as to make it contain, as far as possible, the general law of the session of 1897. Now it must be conceded that it is a little difficult to understand the reason for the amendment to sec. 925 — 17 — 632 — made by ch. 138 of the Laws of 1897, because, as we have seen, prior to that law cities organized under special charter had ample power to adopt any provision of the general charter law including that relating to annexation of territory, and thereby acquire power to annex territory in the manner provided in the general charter law. The amendment, therefore, did not change the then existing law in any particular, but simply wrote into sec. 925 — 17 the law as it was to be found in other parts of the statutes. The amendment neither added to nor subtracted from the then existing law. The provision therein relating “to declaring said city to be of a certain class” was already a part of the statutory law to be found in ch. 320 of the Laws of 1895, which provided that ordinances adopted by cities organized under special charter for the purpose of adopting any of the provisions of the general charter law “may declare such city to be of a certain class, naming it, according to the provisions of section 1 of this act.” That provision,- however, was utterly without purpose, because the legislature by ch. 238 of the Laws of 1895 had established classes for. cities operating under a special charter in strict conformity to the classification of cities made under the general charter law. Now it seems that if the legislature by adopting the amendment to sec. 925 — 17 for the purpose of embodying in the revised law ch. 138 of the Laws of 1897 had intended any change in the effect of sec. 926 — 2 it would not have permitted said sec. 926 — 2 to remain in the bill in the form as originally introduced. Furthermore, if it were intended that before cities could exercise the powers conferred upon them by sec. 926 — 2 it was necessary for them to adopt the provisions of the general charter law and to declare their class by ordinance, then sec. 926 — 2 was quite superfluous and might as well have been stricken from the bill. In view of the fact that as introduced sec. 926 — 2 unequivocally conferred power upon cities organized under special charters to annex territory in the manner prescribed by the general charter law — 633 — without adopting any portion thereof, and in view of the further fact that it refers to secs. 925 — 17 to 925 — 21 for the manner of annexation; that ch. 138 of the Laws of 1897 was enacted when no such provision as that embodied in sec. 926 — 2 was in existence, and there could have been no intent on the part of the legislature by the enactment of ch. 138 of the Laws of 1897 to change the effect of any law such as that embodied in sec. 926 — 2, we conclude that the enactment of sec. 926 — 2 after, the enactment of ch. 138 of the Laws of 1897 must be construed merely as declaring another class of cities which could annex territory in the manner prescribed by the general charter law. It is important to note that sec. 926 — 2 was enacted sub - sequent to ch. 138 of the Laws of 1897, and that, by a familiar rule of construction, the later act is to govern if there be a conflict. We have no right to infer that the revisors were unaware of the fact that ch. 214 of the Laws of 1893 had been repealed. The duty enjoined upon them was not merely to revise existing laws, but, as we have seen, they were to “correqt such errors and harmonize such discrepancies in the statutes as they deemed advisable.” They, might well have considered that it was advisable to have a provision in the statute similar to that of ch. 214 of the Laws of 1893, and when the legislature enacted the bill proposed by them their thought became the legislative thought, and the plain effect of sec. 926 — 2 cannot be changed nor can its express terms be construed as amended by implication by virtue of legislation enacted prior to its enactment. It seems plain that sec. 926 — 2 should now be given the same effect that would have been accorded to it had the revisors’ bill been enacted as it was introduced. To reach a different conclusion would be to say that a later enactment is to be amended by implication by a prior act, which, to say the least, is a novel proposition. The appellant next contends that the provisions of ch. 242 of the Laws of 1921, now ch. 62 of the Statutes, which re — 634 — peals the charters of all cities incorporated under special act except that of the city of Milwaukee, is unconstitutional because it violates secs. 31 and 32, art. IV, Const. Sec. 31 prohibits legislation (9) “for incorporating any city, town or village, or to amend the charter thereof,” and sec. 32 requires the legislature to provide general laws for the transaction of any business that may be prohibited by sec. 31. His contention is. that the repealing of every special city charter in the state, except that of Milzmukee, amounts to special legislation so far as Milwaukee is concerned. It would appear that Mihuaukee by this legislation has been placed in a closed class, and if we were dealing with legislation which affirmatively affected the charter of the city of Milwaukee a serious question might be presented. However, ch. 242 of the Laws of 1921 does not in any manner affect the charter of the city of Milwaukee.' That remained exactly as it was prior to the enactment of ch. 242 of the Laws of 1921. However much ch. 242 of the Laws of 1921 changed the charters of the other cities of the state, it did not affect the charter of the city of Milzucmkee, and it is quite plain that the legislation does not offend against the provision of the constitution referred to. The appellant notes the fact that sec. 311 of said ch. 242 repeals the second sentence of sec. 926 — 2. That sentence, however, does not relate to cities of the first class, so that this circumstance cannot be said to have any effect upon the charter of the city of Milwaukee. It is next contended that ch. 242 of the Laws of 1921 offends against sec. 23, art. IV, of the state constitution, which provides that “The legislature shall establish but one system of town and county government, which shall be as nearly uniform as practicable.” It is claimed that this provision of the constitution is violated because property in towns contiguous to the city of Mihuaukee may be annexed upon a petition not exactly identical with the petition necessary to annex such territory to cities in other parts of — 635 — the state. This contention is answered by saying that the annexation of territory to cities is no part of any “system of town or county government.” So far as it affects towns at all, it affects their boundary lines and not their government. Town and county boundaries are under the control of the legislature, and there is no provision in the constitution requiring that such boundaries shall be established by general law. Chicago & N. W. R. Co. v. Langlade Co. 56 Wis. 614, 14 N. W. 844, and cases there cited. This is also a sufficient answer to the further contention made by appellant that territory annexed to a city must be limited to a single township and cannot include an unincorporated village. We discover no exercise of excessive authority on the part of the city of Milwaukee, nor irregularities, in the adoption of the ordinance of annexation, and the demurrer to the defendant’s answer was properly overruled. By the Court. — Order affirmed.