Summary
In McCabe v. Milwaukee (1971), 53 Wis.2d 34, 191 N.W.2d 926, we deemed service on the attorney general to be jurisdictional.
Summary of this case from Bollhoffer v. WolkeOpinion
No. 190.
Argued November 1, 1971. —
Decided November 30, 1971.
APPEAL from an order of the circuit court for Milwaukee county: WILLIAM I. O'NEILL, Circuit Judge. Dismissed.
For the appellants there was a brief and oral argument by Richard J. Steinberg of Milwaukee.
For the respondents there was a brief by John J. Fleming, city attorney, and Harvey G. Odenbrett, principal assistant city attorney, and oral argument by Mr. Odenbrett.
This action for declaratory judgment relief was commenced by Morgan L. McCabe and Frank Fleischer, appellants, against the city of Milwaukee and the individual members of the board of assessment of the city of Milwaukee, respondents.
The city of Milwaukee commenced condemnation proceedings on August 2, 1968, pursuant to the provisions of ch. 275, Laws of 1931, commonly known as the Kline Law, for the improvement of North 16th and North 17th Streets between West Kilbourn Avenue and West State Street. The appellants each owned parcels of land within this project. As required by the Kline Law, hearings were held to determine both the necessity of the project and the amount of damages to be paid for each parcel taken. Damages were assessed at $10,500 for the taking of McCabe's property and at $21,500 for Fleischer's land. Neither of these property owners objected to these amounts at any of the hearings held by the board of assessment. The final report and statement of assessment of damages were transmitted to the Milwaukee common council, which confirmed the board's assessment by a resolution passed on January 13, 1970. On February 9, 1970, more than twenty days after confirmation of the award by the common council, the appellants received letters informing them of the confirmation. At that time, however, the time for appeal from the award had run.
The appellants thereupon commenced this action for declaratory judgment relief, pursuant to sec. 269.56, Stats. The complaint alleged that the letter of February 9, 1970, was the first and only notification received by the appellants that the common council had confirmed the award of damages and that the time for appeal from such award had expired prior to receipt of notice of confirmation. The appellants requested the circuit court to declare the Kline Law unconstitutional, asserting that the failure to provide for notice of confirmation amounted to a denial of due process of law.
The city demurred to the complaint on the grounds (1) that the court lacked jurisdiction over the subject matter; (2) that there was a defect in parties defendant; and (3) that the complaint failed to state facts sufficient to constitute a cause of action. The demurrer was sustained on the first and third grounds. The court held that the action for declaratory relief was, in reality, an attempt to appeal from the award after the time for appeal had run. Since appeal within twenty days is the exclusive remedy under the Kline Law, the court felt it lacked jurisdiction. Further, since the complaint did not show any failure on the part of the city to comply with the provisions of the Kline Law, the court held that there was no showing of a denial of due process. The trial court sustained the demurrer to the complaint. Appellants appeal from the order sustaining the demurrer.
We note at the outset that it does not appear that the attorney general was served with a copy of the proceeding in this case or that he was cognizant of the institution of the action. Whenever a declaratory judgment action is brought challenging the constitutionality of a statute or ordinance, the attorney general must be served with copies of the proceedings, as required by sec. 269.56(11), Stats.:
". . . [I]f the statute, ordinance or franchise is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard." (Emphasis supplied.)
In Chicago N.W. Ry. Co. v. La Follette (1965), 27 Wis.2d 505, 523, 135 N.W.2d 269, this court stated that the attorney general has the duty to appear on behalf of the people of this state to defend the statute. Moreover, since sec. 269.56(15), Stats., directs uniformity of interpretation between the several states which have enacted the Uniform Declaratory Judgments Act, it is appropriate to note that those states which have construed the section referred to have held that service of a copy of the proceedings upon the attorney general is not only mandatory, but goes to the jurisdiction of the court to hear the action in the first instance. Parr v. Seattle (1938), 197 Wn. 53, 84 P.2d 375; Cummings v. Shipp (1928), 156 Tenn. 595, 3 S.W.2d 1062; Jefferson County Fiscal Court v. Trager (1945), 300 Ky. 606, 189 S.W.2d 955; Pressman v. State Tax Comm. (1954), 204 Md. 78, 102 A.2d 821; Gadsden v. Cartee (1966), 279 Ala. 280, 184 So.2d 360.
We think the state as a whole is interested in the validity of city ordinances; and it is obvious that the legislature wanted to protect that interest when it provided for service of proceedings upon the attorney general.
We conclude that since the record fails to show service of a copy of the proceeding on the attorney general, the trial court did not acquire jurisdiction. We are without jurisdiction to entertain this appeal, and it must be dismissed. The trial court's order dismissing the complaint was proper.
By the Court. — Appeal dismissed.