(dissenting). The majority has gullibly given credence to Fitchburg’s underlying claimed right to incorporate — a claim that should have been dismissed out of hand as frivolous.
I completely agree with Justice Abrahamson’s thoughtful and well crafted dissent, but she takes the majority too seriously. The frivolity of the majority opinion mirrors the frivolousness of the town’s claim and deserves to be treated by the public and the legal community for the absurdity it is.
I differ from Justice Abrahamson only to the degree that she asserts that the majority’s error stems from ignoring the literal language of the statute. I am compelled to conclude that the problem is not one of literalness, but of literacy. The majority’s conclusion defies the expressed will of the legislature and a common sense understanding of the English language.
I dissent.
SHIRLEY S. ABRAHAMSON, J.{dissenting). A few years ago, a new crop of bumperstickers sprang up in Madison and its environs. These bumperstickers carried a message to the judiciary: FREE FITCHBURG. The majority apparently took the message to heart. In its zeal to free the Town of Fitchburg from the grasp of second-class city of Madison and to liberate Fitchburg in*242to city-dom, the majority also freed this court from having to apply a statute with which it disagrees and from adhering to its own prior opinion.
The majority reads the statutory phrase “adjacent to a city of the first class,” appearing in sec. 60.81, as if the legislature had written “adjacent to a city with a population of 150,000 or more” (supra, p. 239), even though the legislature has provided that a city’s first-class classification is not dependent solely on population. Sec. 62.-05(2) provides: “. . . Cities shall pass from one class to another when [the] census shows that the change in population so requires, when provisions for any necessary changes in government are duly made, and when a proclamation of the mayor, declaring the fact, is published according to law.” (Emphasis added.)
In interpreting a statute the function of a court is to ascertain and effectuate the intention of the legislature. The legislative intention, as reflected in the clear words of sec. 62.05(2), is that Madison is not a first-class city for purposes of sec. 60.81. To overcome the clear words of secs. 60.81 and 62.05, the majority apparently adopts as a canon of statutory construction that “the spirit or intention of a statute should govern over the literal or technical meaning of the language used.” Supra, p. 236. The majority attempts to derive this canon from the Leicht, Skubitz, and Mussallem cases, the last two of which rest on Leicht. These cases do not stand for the proposition that this court can be guided by the statute’s “spirit” when it chooses to ignore the statute’s words. These three cases set forth the canon of statutory construction this court invariably uses: when the literal language of the statute is ambiguous, thwarts the manifest purpose of the statute, or leads to an absurd, unreasonable, or unjust result, obscurity of meaning exists calling for judicial construction. State ex rel. Jackson v. Leicht, 231 Wis. 178, 183-85, 285 N.W. 335 (1939). See *243also Llewelyn, Remarks on the Theory of Appellate Decision and the Rules on Canons about How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 403 (1950).
In this case, the court does not — and can not — say that the statutory language is ambiguous, thwarts the manifest purpose of the statute, or leads to an absurd result. Thus the plain meaning rule, a rule which has its critics,1 including myself, but which this court invariably uses, see The State Historical Society of Wis. v. Village of Maple Bluff,2 decided today, governs. If there ever was a situation for application of the rule, this is it. I am concerned that the court fails even to attempt to establish a coherent approach to the problem of statutory interpretation. This case and the State Historical Society case cannot help but confuse lawyers and legislators.
The majority opinion by ignoring the literal language of the statute renders the statutes ambiguous, thwarts the manifest legislative purpose, and reaches an absurd result. The result of the majority opinion is that Madison, which the majority recognizes as a city of the second class, becomes a first-class city for purposes of sec. 60.-81. Although the majority tries to limit the effect of its opinion (n. 11), its reasoning opens the courts’ doors to those who wish to make Madison a city of first class for other statutory purposes, as well as to those who wish to change the classifications of other cities without com*244plying with the procedures set forth in sec. 62.05(2).3 There are at least eleven fourth-class cities that meet the population standards of third-class cities4 and at least two third-class cities that meet the population standards of second-class cities.5 1981-82 Blue Book, State of Wisconsin. Indeed, even Fitchburg may be more liberated than it wants to be; it intends to incorporate as a fourth-class city, but it has the requisite population to be a third-class city. This court’s opinion will cause a great deal of confusion, as the amicus curiae brief of the League of Wisconsin Municipalities points out.
If this court may, contrary to the plain meaning rule, look outside the statute to see if there is persuasive evidence of a clear legislative intention different from that to which an ordinary reading of the plain words of the statute would lead, and I think it may, I conclude that the legislative history in this case would not guide this court to the interpretation it adopted. See Johnson, The Wisconsin Experience with State-Level Review of Municipal Incorporations, Consolidations, and Annexations, 1965 Wis. L. Rev. 462; Cutler, Characteristics of Land Required for Incorporation or Expansion of a Municipality, 1958 Wis. L. Rev. 6; 1977 A.B. 694; 1979 A.B. 1180, Sen. Amend. 28.
*245Finally, before I read this majority opinion, I, like the trial court in this case, thought that this court had decided the issue in this case in In re Incorporation of Town of Fitchburg, 98 Wis. 2d 635, 644, n. 3, 229 N.W.2d 199 (1980). In that case we stated that we concurred with the trial court which had determined that for purposes of interpreting sec. 60.81 “the City of Madison is not a city of the first class.” See 98 Wis. 2d at 644 and n. 3. Although this court’s statement in the first Fitchburg case did not decide the primary issue in the case, it “was plainly germane to that issue and . . . ‘when a court of last resort intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision.’ ” State v. Kruse, 101 Wis. 2d 387, 392, 305 N.W.2d 85 (1981). We ought to abide by our decision in the first Fitchburg case.
For the foregoing reasons, I dissent.
I am authorized to state that Chief Justice Bruce Beilfuss joins in this dissent.
Murphy, Old Maxims Never Die: The “Plain-Meaning Rule” and Statutory Interpretation in the “Modern” Federal Courts, 75 Colum. L. Eev. 1299, 1315 (1975).
“On any question of statutory construction, the initial inquiry is to the plain meaning of the statute. If the statute is unambiguous, resort to judicial rules of interpretation and construction is not permitted, and the words of the statute must he given their obvious and intended meaning. Wis. Bankers Ass’n v. Mut. Savings & Loan, 96 Wis. 2d 438, 450, 291 N.W.2d 869 (1980).” 112 Wis. 2d 246, 252-253, 332 N.W.2d 792 (1983).
See, e.g., sec. 6.78(1) (polls); 48.64(1) (library board); 62.08 (size of wards); 62.13(7), (7m) (compensation to and rest days for police officers); 62.13(11a) (fire department platoons); 62.23(7a) (a) (extraterritorial zoning); 86.32 (state aid for bridges); 146.05 (plumbers for waterworks); 213.13 (rest days for firefighters); 236.02 (extraterritorial plat approval) ; 985.06(1) (bid advertisements).
Beaver Dam, pop. 14,149; Franklin, pop. 16,871; Menomonie, pop. 12,769; Mequon, pop. 16,193; Middleton, pop. 11,779; Monroe, pop. 10,027; Oak Creek, pop. 16,932; St. Francis, pop. 10,066; South Milwaukee, pop. 21,228; Sun Prairie, pop. 12,931; Whitewater, pop. 11,520.
Eau Claire, pop. 51,509; Waukesha, pop. 50,319.