Summary
In Fort Howard Paper Co. v. Town Board (1954), 266 Wis. 191, 63 N.W.2d 122, the court held that the above-emphasized language did not prohibit the town board from restricting the power of the district to engage in but one or some limited number of purposes for which such districts may be organized.
Summary of this case from 61 Op. Att'y Gen. 431Opinion
February 3, 1954 —
March 2, 1954.
APPEAL from a judgment of the circuit court for Brown county: E. M. DUQUAINE, Circuit Judge. Affirmed.
For the appellant there were briefs by Lines, Spooner Quarles of Milwaukee, and Everson, Ryan, Whitney O'Melia of Green Bay, attorneys, and Maxwell H. Herriott of Milwaukee, John C. Whitney of Green Bay, and William K. McKibbage of Milwaukee of counsel, and oral argument by Mr. Herriott.
For the respondents there was a brief by Davis, Soquet Davis of Green Bay, and oral argument by Donald E. Soquet.
Action begun June 6, 1952, by the Fort Howard Paper Company against the town of Ashwaubenon and others, seeking to set aside the action of the town board of said town creating and establishing the Ashwaubenon Storm Sewer District, and to have said action declared void, invalid, and of no effect. The case was tried to the court, and on June 17, 1953, judgment was entered dismissing plaintiff's complaint.
The material facts are not complicated and are set forth in the memorandum opinion of the trial court as follows:
"On May 2d 1952, there was filed with the town board of Ashwaubenon a petition requesting the establishment of the `Ashwaubenon Storm Sewer District.' The petition recites:
"`That the town board of the town of Ashwaubenon, Brown county, Wisconsin, establish a town storm-sewer district in accordance with section 60.30 through 60.309 inclusive, Wisconsin statutes of 1949, such to be known as Ashwaubenon Storm Sewer District, of the town of Ashwaubenon, Brown county, Wisconsin; that there is a necessity for the proposed work in order to have adequate drainage of the streets and highways within the territory hereinafter described by removing storm and surface water from the said streets and highways; that the public health, comfort, convenience, necessity, and public welfare will be promoted by the establishment of such district and that the property to be included therein will be benefited by such establishment; that the boundaries of the territory to be included in the proposed work are the boundaries of the town of Ashwaubenon, Brown county, Wisconsin, it being intended with all of the property lying within the boundaries of the said town of Ashwaubenon and comprising the said town of Ashwaubenon shall constitute the said Ashwaubenon Storm Sewer District; that the proposed improvement will consist of the installation and maintenance of surface or storm-water sewers, catch basins, culverts, and ditches where such are necessary, in the streets and highways located within said storm-sewer district; that attached hereto is a plat or sketch indicating the area and boundaries of said proposed district.'
"The petition was signed by at least 215 property owners out of a total of about 345.
"Meetings on the petition were held on May 17th and on May 24th. At the conclusion of the second meeting the board made and entered its order, as follows:
"`Now, therefore, be it, and it hereby is ordered by the town board of supervisors of the town of Ashwaubenon, Brown county, Wisconsin, as follows:
"` Section 1. Said board makes and declares the following findings:
"`A. That said petition is signed by the requisite owners of real estate as provided in subsection (1) of section 60.302, Wisconsin statutes.
"`B. That the proposed work is necessary.
"`C. That the public health, comfort, convenience, necessity, and public welfare will be promoted by the establishment of such district.
"`D. That the property to be included in the district will be benefited by the establishment thereof.
"` Section 2. The boundaries of said district are established as the boundaries of the town of Ashwaubenon, it being intended that all of the property lying within the boundaries of the said town of Ashwaubenon and comprising the said town of Ashwaubenon, shall constitute the said storm-sewer district.
"` Section 3. A town sanitary district having the boundaries prescribed in section 2 above, is hereby organized; such district is created for the purpose of purchasing, establishing, or constructing surface or storm-water sewers only, and shall have the powers necessary to carry out the purposes for which it is organized.
"` Section 4. The corporate name of said district is and shall be Ashwaubenon Storm Sewer District.'
"The town of Ashwaubenon is the town that lies west of Fox river, between the cities of Green Bay and De Pere. It is a small town, roughly about one fourth the size of a full township of 36 sections. The river is the east boundary of the town. The south limits of Green Bay form the north boundary line. On the south the town is bounded partly by the city of De Pere and partly by the town of Lawrence. Plaintiff operates a large paper mill. Its property lies in the northeast corner of the town, being bordered on the east by the river and on the north by the south limits of Green Bay.
"There already exists in the town two so-called sanitary districts, one known as `The Fox River Heights Sanitary District' and the other as `The Southeast Sanitary District.' Plaintiff's lands lie wholly in the existing Fox River Heights Sanitary District."
The trial court made the following findings of fact:
"1. That on the 2d day of May, 1952, there was filed with the town board of Ashwaubenon a petition requesting establishment of the Ashwaubenon Storm Sewer District.
"2. That on the 24th day of May, 1952, after hearings duly held on said petition, the town board of the town of Ashwaubenon made and filed its order organizing and creating the Ashwaubenon Storm Sewer District, which order is as follows:
[Order of the town board of supervisors of the town of Ashwaubenon, as set forth above.]
"3. That the findings of fact contained in subsections A, B, C, and D of section 1 of said order were each made upon sufficient evidence to support them.
"4. That the plaintiff's property will be benefited by the establishment of the Ashwaubenon Storm Sewer District."
Upon those findings the court based its following conclusions of law:
"1. That the town board in creating the Ashwaubenon Storm Sewer District did not act arbitrarily, capriciously, or oppressively.
"2. That the town board proceeded in accordance with the provisions of the law and within its jurisdiction.
"3. That sections 60.30 to 60.309 Wisconsin statutes are constitutional.
"4. That the establishment of the Ashwaubenon Storm Sewer District is not in violation of section 3 of article XI of the Wisconsin constitution.
"5. That the Fox River Heights Sanitary District and the Southeast Sanitary District do not have the power to construct storm-water sewers; that the existence or nonexistence of such powers upon the part of the said two sanitary districts is not controlling in the matter of the legality of the organization of the Ashwaubenon Storm Sewer District.
"6. That the establishment of the Ashwaubenon Storm Sewer District so as to be coexistent with the Fox River Heights Sanitary District and Southeast Sanitary District does not constitute an invalid duplication of municipal corporations.
"7. That the order of the town board dated May 24th, 1952, creating and organizing the Ashwaubenon Storm Sewer District should be affirmed, the said district to have only the power to construct and maintain surface or storm-water sewers, catch basins, culverts, and ditches for the purpose of removing storm and surface waters from the streets and highways within the district.
"8. That the plaintiff's complaint should be dismissed upon its merits.
"9. That the defendants shall have and recover of the plaintiff Fort Howard Paper Company as costs of this action the sum of $100 dollars attorney fees in addition to taxable disbursements."
In seeking a reversal of the judgment, appellant first raises the question of the constitutionality of secs. 60.30 to 60.309, Stats. It is urged by appellant that those statutes constitute an unconstitutional delegation of legislative power by creating opportunity for a district to "benefit to the extent it evaded the constitutional debt limitation" of sec. 3, art. XI of the Wisconsin constitution, which limits the indebtedness of any municipal corporation to five per cent of the value of its taxable property. Using as a precedent the case of Fort Howard Paper Co. v. Fox River Heights Sanitary Dist. 250 Wis. 145, 26 N.W.2d 661, we agree with the trial court that "It appears to be well settled that in the creation of a sanitary district by a town board there is a permissible delegation of legislative police power." Appellant argues that the town of Ashwaubenon already had the power to act in the matter sought to be vested in the newly created storm-sewer district of the town of Ashwaubenon, that, therefore, the establishment of the all-town district was not necessary, and that a town sanitary district the boundaries of which are coterminous with the township cannot be lawfully created because it is an invalid duplication of municipal corporations by means of which the constitutional debt limit may be evaded.
In replying to this argument, the following statutes must be considered. Sec. 60.30 (2), Stats., says that town sanitary districts may be created "in any town, towns, or part thereof." Sec. 67.03 (1) grants the power to a municipal corporation, such as a sanitary-sewer district, to borrow money and issue municipal obligations therefor. In sec. 67.03 (2) we find the provision that the amount of the indebtedness of a municipal corporation shall be only such "as has been or may be incurred independently by a municipality for its own separate purposes; and does not include any indebtedness, in whole or in part, that has been or may be incurred independently by any other municipality for its own separate purposes, even though the territory and taxable property of either municipality constitutes the whole or a part of the territory and taxable property of the other." Thus sec. 67.03 expressly permits a town sanitary district to incur indebtedness up to five per cent of the assessed value of its taxable property for its own purposes, and the town, having the same boundaries, may also incur indebtedness for town purposes not exceeding five per cent of the assessed value of the same property. Lippert v. School District, 187 Wis. 154, 203 N.W. 940. In the instant case there can be no valid claim that the town sanitary district was created for the purpose of evading the constitutionally imposed debt limit. Therefore, when the power to create town districts and the power to borrow money and issue municipal obligations is used in strict conformity with legislative standards prescribed in the statutes, there can be no unconstitutional delegation of power.
The question next raised is whether secs. 60.30 to 60.306, Stats., authorized the town board of Ashwaubenon to establish the storm-sewer district of the town of Ashwaubenon if said district, though organized for the installation of storm sewers only, includes within its boundary other sanitary districts previously created under the same statutes for installation of sanitary sewers. Appellant contends that, because of the presence of such previously created districts, the new town-wide storm-sewer district of the town of Ashwaubenon may not be created or thus be imposed upon the sanitary districts created earlier. In 1941 the Southeast Sanitary District of the town of Ashwaubenon was created by order of the town board of the town of Ashwaubenon; and in June, 1945, the Fox River Heights District was formed by order of said town board.
Secs. 60.30 (1) and 60.306 (2), Stats., recognize the need for and make provision for the creation at different times of sanitary districts to install and maintain different improvements. Sec. 60.30 (1) says that "Town sanitary districts may be created for the purpose of purchasing, establishing, or constructing surface or storm-water sewers, drainage improvements, sanitary sewers, or a system or systems of waterworks, sewerage, garbage or refuse disposal or all of such improvements or any combination thereof, . . ." Sec. 60.306 (2) reads:
"The commission shall project, plan, construct, and maintain in such district a system or systems of waterworks, garbage, or refuse disposal or sewerage, including sanitary sewers, surface sewers, or storm-water sewers, provide chemical treatment of waters for the suppression of swimmer's itch, algae, and other nuisance-producing aquatic growths, or all of such improvements or any combination thereof necessary for the promotion of the public health, comfort, convenience, or public welfare of such district, and such commission is authorized to enter into contracts and take any or all proceedings necessary to carry out such powers and duties."
The word "shall" as used in the above section does not require a district to enter upon a plan to furnish all and every one of the improvements; but, as the trial court stated, that section must stand in pari materia with sec. 60.30 (1), Stats., which allows sanitary districts to be created for the purpose of "purchasing, establishing, or constructing surface or storm-water sewers, drainage improvements, sanitary sewers, or a system or systems of waterworks, sewerage, garbage or refuse disposal or all of such improvements or any combination thereof. . . ."
It appears from the record that neither of the previously organized districts has ever acted upon or exercised the power of installing storm-water sewers. There is, then, no actual conflict between any previously created district and the new, town-wide district of the respondent here. The petition addressed to the town board proposing an all-town district was signed by 60 per cent of the landowners of the town (215 out of a total of 345). The signers asked that the sanitary district be created and be limited to a single purpose, that of installing storm sewers. Thus created, the new sanitary district does not interfere with the previously organized town sanitary districts which have no storm sewers.
When the legislature employed the term "Purchasing" in sec. 60.30 (1), Stats., it undoubtedly had in mind that there might be situations in which some of the facilities, for which a district might be organized to provide, already existed, in which case the newly created district was empowered to purchase the same. Therefore, if a town-wide district is organized, and there is already in existence one or more sanitary districts embracing only part of a town, the town-wide district is empowered to purchase the existing facilities. This being true, it must follow that the statutes do not prevent the creation of a larger sanitary district in territory where a smaller sanitary district has been organized, as in the instant case, provided there will be no conflicting interests.
We are of the opinion that the town board was entitled to consider "the location of the town's farmlands as respects the nearness of centers of population; the rapidly changing means of locomotion to automobiles, leading industries as well as retail establishments to build in places where ample parking space for employees and customers may be provided; recent construction; purchases of real estate and the purposes for such purchases; the probable effect upon the community of new Highway 41; the growth of Green Bay and the metropolitan area it centers; and what the town of Allouez did to solve a fairly comparable problem. The board was not required to make a record of all the things its members would naturally know and which would influence their judgment."
In considering the events before it and deciding to grant the petition, the town board had in mind that all of the property of the new district was within the same watershed and that there was occasion for the board to conclude and find, as it did, that all of the property to be included in the new district would be benefited by the establishment of that district. We agree with the trial court that the statutes under which the town board acted are constitutional, that the town board proceeded in accordance with the provision of the law and within its jurisdiction, that the findings of fact were made upon sufficient evidence, and that the board in creating the storm-sewer district of Ashwaubenon did not act arbitrarily, capriciously, or oppressively. It is considered that the judgment should be affirmed.
By the Court. — Judgment affirmed.