The city of Milwaukee in annexing the territory in question did not comply with the provisions of the section now numbered 62.07 (1) (a), Stats., of the general charter law with regard to the posting and publishing of notices. The city claims, and the majority opinion holds, that the city did not have to give notice because it had not adopted that part of the general charter law by ordinance, and, therefore, annexation proceedings by the city are governed by the provisions of secs. 925-17 to 925-21, inclusive, and 926-2, R.S. 1898.
Prior to the revised statutes of 1898 the statute providing for the annexation of territory by special charter cities was repealed. Consequently, at that time there was no way in which a special charter city could annex territory.
Sec. 926-2, R.S. 1898, provided:
"Annexation and detachment of territory. Territory lying adjacent to any city so incorporated may be annexed to such city in the manner 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 925-21a."
As I interpret it this gave special charter cities the right to annex territory in the same manner as that provided in the general charter law. *Page 633
By ch. 283, Laws of 1933, now sec. 62.07 (1) (a), Stats., the legislature made this addition to the general charter law on annexation:
". . . provided, that no petition for annexation shall be valid unless at least thirty days and not more than forty-five days before any such petition is caused to be circulated, a notice shall be posted in at least eight public places in the municipality in which the adjacent territory is located, and a copy such notice published in a newspaper of general circulation within the county in which said adjacent territory is located, at least fifteen days prior to the time when such petition is caused to be circulated, such notice to set forth that an annexation petition is to be circulated, and including an accurate description of the territory involved."
The city of Milwaukee contends that the effect of sec. 926 — 2, R.S. 1898, was to make secs. 925-17 to 925-21, inclusive, a part of the charter of the city of Milwaukee. But it does not think that the amendment to those sections of the general charter law applies to it unless it has adopted them by ordinance.
The city relies on Zweifel v. Milwaukee, 185 Wis. 625, 632,201 N.W. 385. In that case this court, as quoted in the majority opinion, said that, "sec. 926-2 unequivocally conferred power upon cities organized under special charters to annex territory in the manner prescribed by the general charter law without adopting any portion thereof." But the case did not hold, as the city of Milwaukee would have us believe, that amendments to the annexation provisions of the general charter law would not apply to special charter cities unless adopted by ordinance. On the contrary the conclusion reached in that case is clearly that, since the legislature made the statute apply without adoption by ordinance originally, it intended that subsequent amendments would apply equally. The city has the power to annex in the manner and as provided in the general charter law because "the enactment of sec. *Page 634 926-2 . . . must be construed merely as declaring another class of cities which could annex territory in the manner prescribed by the general charter law." Zweifel v. Milwaukee,185 Wis. 625, 633, 201 N.W. 385, 387. If the city desires to annex any territory, it must proceed under the terms of the statute giving the power. The grant of power to annex and the method and procedure to be followed is prescribed in the section of the general charter law and its terms are subject to amendment which will continue to control the city until otherwise provided.
This is a problem of legislation by reference. In GeorgeWilliams College v. Williams Bay, 242 Wis. 311, 316,7 N.W.2d 891, this court recognized the rule of legislation by reference: "By this doctrine when a statute adopts the general law on a given subject, the reference is construed to mean that the law is as it reads thereafter at any given time including amendments subsequent to the time of adoption. This is to be contrasted with adoption by reference of limited and particular provisions of another statute, in which case the reference does not include subsequent amendments. 2 Lewis' Sutherland Statutory Construction (2d ed.), p. 787 et seq., secs. 405, 406. See Cole v. Donovan, 106 Mich. 692,64 N.W. 741."
In that case the legislature had amended the village sewer assessments law to make the city law applicable "to the same extent as if villages were cities." In the present case the legislature has provided that cities under special charter can annex territory in the same manner as cities under the general charter law. In both cases there was a grant by the legislature of a general power — the power to make sewer assessments, the power to annex. There is no difference in the type of power granted in both cases. To hold as the majority does is to overrule the earlier case.
My dissent is proper and, in my opinion, necessary because of the effect of the decision on other sections of the statutes. *Page 635
For example, there are thirty-one references in the statutes to ch. 32 on eminent domain. Under the majority decision if ch. 32 is amended, will everyone of those thirty-one sections wherein the reference is made have to be amended also? This could be true of the forty-two references to ch. 227 on administrative procedure and review, and of the great number of references in special court acts to the practice in circuit court or in justice court. Such a contention would break down all attempts at uniformity.
Sec. 926-2, R.S. 1898, was withdrawn from the statutes and put in the session laws by ch. 242, Laws of 1921. The fact that statutes may be withdrawn from the published laws and are to be found in the session laws does not destroy them as statutes or diminish their strength. In the section spoken of as withdrawn is to be found the source of the city's right to proceed with annexation. That section directly connects the source of the power with the manner of its administration. It is under the control of the legislature. When the manner and method are varied by amendment the city seeking to exercise that power must do so in the prescribed manner. The failure to give notice is, it seems to me, fatal to the proceedings.
I am authorized to state that Mr. Justice MARTIN agrees with this dissent.
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