Roehrborn v. City of Ladysmith

Wisconsin Supreme Court

Roehrborn v. City of Ladysmith

185 N.W. 170, 175 Wis. 394, 1921 Wisc. LEXIS 215

CourtWisconsin Supreme Court

DecidedNovember 15, 1921

StatusPublished

Cited by8 cases

This text of 185 N.W. 170 (Roehrborn v. City of Ladysmith) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Roehrborn v. City of Ladysmith, 185 N.W. 170, 175 Wis. 394, 1921 Wisc. LEXIS 215 (Wis. 1921).

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Opinion

Rosenberry, J.

It is contended on behalf of the appellant that even though the ordinance adopted July 5, 1916, was at a time prior to the expiration of thirty days from the date of its introduction, not having been drawn in question within the time limited by sec. 925 — 21, Stats., its validity cannot now be drawn in question. While the statute in terms does not require the giving of a notice of the time and place when and where the proposed ordinance will be acted upon, nevertheless the purpose of the publication must be to advise those who are interested that the matter is before the common council for consideration. Within the doctrine laid down in Herman v. Oconto, 100 Wis. 391, 76 N. W. 364, the action of'the council in attempting to adopt the proposed ordinance before the expiration of the thirty days must be held to be a nullity and to have no legal effect. There is language used in Lutien v. Kewaunee, 143 Wis. 242, at page 247 (126 N. W. 662, 127 N. W. 942), which, if not read in connection with the facts in that case, might warrant the conclusion that a statute limiting the time within which the validity of the ordinance may be called in question would operate to make its adoption valid though no publication had been had. It is there said :

“But ninety days after such ordinance is adopted the time for calling it in question expires whether publication is defective or not, and even if no publication has taken place.”

The publication there referred to is not the publication of the ordinance required to be made before it is acted upon by the council, but is the publication of the ordinance required to be made after its adoption. A statute limiting the time within which .the validity of the ordinance may be called in question cannot operate to give vitality to a proceeding which is void and therefore without legal effect.

The question then arises whether or not the action taken [397]*397by the council on May 1, 1917, adopting the ordinance is valid. The trial court was of the opinion that it was invalid because the council had not acted within a reasonable time after the publication of the ordinance. The statute prescribing no time within which the ordinance must be acted upon,' any limitation upon the power of the council in the premises must arise by implication of law. It is not to be supposed that the proceedings had which resulted in the publication of the ordinance would authorize the adoption of the ordinance two, or three, or five years after the time of its publication. We are of the opinion that the council is required to act within a reasonable time. Is a delay of nine months unreasonable ? Upon this point we find very little, if any, help from the authorities. A much shorter time is prescribed by statute in many cases where local legislative and administrative bodies are required to act. While a delay of nine months is long and might permit the adoption of the ordinance without those interested having notice, nevertheless we do not feel that we can say that such an unreasonable length of time had.elapsed as to make the action of the council void. We must hold, therefore, that the ordinance was legally adopted and is in full force and effect, that the territory sought to be attached to the city of Ladysmith is a part of that city, and that the city is entitled to judgment accordingly.

. It is contended that'the ordinance was not sufficiently described in the resolution which in terms adopted the ordinance. It is clear that no one was misled in this matter— that no other ordinance by any possibility could have been referred to. The language of the resolution was “that the ordinance annexing the territory be adopted.” Under the facts shown in this case we think this a sufficient reference.

Other questions discussed become immaterial in the view which we take.of the case.

By the Court. — Judgment reversed, with directions to the trial court-to proceed as indicated ip the Opinion,

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Rosenberry, J.

It is contended on behalf of the appellant that even though the ordinance adopted July 5, 1916, was at a time prior to the expiration of thirty days from the date of its introduction, not having been drawn in question within the time limited by sec. 925 — 21, Stats., its validity cannot now be drawn in question. While the statute in terms does not require the giving of a notice of the time and place when and where the proposed ordinance will be acted upon, nevertheless the purpose of the publication must be to advise those who are interested that the matter is before the common council for consideration. Within the doctrine laid down in Herman v. Oconto, 100 Wis. 391, 76 N. W. 364, the action of'the council in attempting to adopt the proposed ordinance before the expiration of the thirty days must be held to be a nullity and to have no legal effect. There is language used in Lutien v. Kewaunee, 143 Wis. 242, at page 247 (126 N. W. 662, 127 N. W. 942), which, if not read in connection with the facts in that case, might warrant the conclusion that a statute limiting the time within which the validity of the ordinance may be called in question would operate to make its adoption valid though no publication had been had. It is there said :

“But ninety days after such ordinance is adopted the time for calling it in question expires whether publication is defective or not, and even if no publication has taken place.”

The publication there referred to is not the publication of the ordinance required to be made before it is acted upon by the council, but is the publication of the ordinance required to be made after its adoption. A statute limiting the time within which .the validity of the ordinance may be called in question cannot operate to give vitality to a proceeding which is void and therefore without legal effect.

The question then arises whether or not the action taken [397]*397by the council on May 1, 1917, adopting the ordinance is valid. The trial court was of the opinion that it was invalid because the council had not acted within a reasonable time after the publication of the ordinance. The statute prescribing no time within which the ordinance must be acted upon,' any limitation upon the power of the council in the premises must arise by implication of law. It is not to be supposed that the proceedings had which resulted in the publication of the ordinance would authorize the adoption of the ordinance two, or three, or five years after the time of its publication. We are of the opinion that the council is required to act within a reasonable time. Is a delay of nine months unreasonable ? Upon this point we find very little, if any, help from the authorities. A much shorter time is prescribed by statute in many cases where local legislative and administrative bodies are required to act. While a delay of nine months is long and might permit the adoption of the ordinance without those interested having notice, nevertheless we do not feel that we can say that such an unreasonable length of time had.elapsed as to make the action of the council void. We must hold, therefore, that the ordinance was legally adopted and is in full force and effect, that the territory sought to be attached to the city of Ladysmith is a part of that city, and that the city is entitled to judgment accordingly.

. It is contended that'the ordinance was not sufficiently described in the resolution which in terms adopted the ordinance. It is clear that no one was misled in this matter— that no other ordinance by any possibility could have been referred to. The language of the resolution was “that the ordinance annexing the territory be adopted.” Under the facts shown in this case we think this a sufficient reference.

Other questions discussed become immaterial in the view which we take.of the case.

By the Court. — Judgment reversed, with directions to the trial court-to proceed as indicated ip the Opinion,

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185 N.W. 170, 175 Wis. 394, 1921 Wisc. LEXIS 215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roehrborn-v-city-of-ladysmith-wis-1921.

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