In State ex rel. Ryan v. Pietrzykowski (1969), 42 Wis.2d 457, 462, 463, 167 N.W.2d 242, the court said that the incorporation by reference of one ordinance by a second ordinance was not effective where the first ordinance was not actually valid and in force.Summary of this case from Racine County v. Alby
Argued March 31, 1969. —
Decided May 6, 1969.
APPEAL from an order of the circuit court for Marathon county: GERALD J. BOILEAU, Circuit Judge. Affirmed.
For the appellants there was a brief and oral argument by Larry W. Rader of Wausau.
For the defendants-respondents there was a brief and oral argument by Arthur C. Kordus of Schofield.
For the intervening defendants-respondents there was a brief by Crooks, Crooks Low of Wausau, and oral argument by Patrick L. Crooks.
This is an appeal from an order quashing an alternative writ of mandamus and dismissing the petition. The writ was sought to require the town board of the town of Kronenwetter (defendant) to revoke licenses issued for the operation of a mobile home court on land abutting the property of the petitioners James J. Ryan and his wife Sandra M. Ryan and to forbid the defendant from issuing any such licenses in the future.
The Ryans owned 40 acres of land in the town of Kronenwetter and in October, 1964, sold 10 acres thereof to a Mr. Van Gundy and a Mr. Overgard. Prior to this purchase, these men obtained a mobile home court license from the town board. In July of 1965, the Ryans platted the remaining 30 acres for residential development. Van Gundy and Overgard sold the 10 acres to intervening defendants John R. Anderson and his wife Mona M. Anderson, who obtained annual renewals of the original mobile home court license. Some work was done on the 10 acres to fit it for operation as a mobile home court.
On January 22, 1968, the Andersons leased the 10 acres to Robert C. Apfelbeck and his wife Darlene for a term of six months with an option to purchase. The Apfelbecks now hold the land under a land contract with the Andersons and have operated a mobile home court thereon, which, at the time of trial, consisted of nine trailer houses.
The town of Kronenwetter had no zoning ordinances prior to April 9, 1968, but attempted on that day to adopt an interim zoning ordinance pending the preparation and adoption of a comprehensive zoning plan. This interim zoning ordinance was a model form and the blanks were not filled in. One of the provisions required mobile home courts to be located on at least 20 acres of land. On May 1, 1968, the town board issued the Apfelbecks a license for the operation of a 50-unit mobile home on the 10-acre tract and an action was brought to compel the revocation of the license. The return to the alternative writ stated the May 1st license had been surrendered and a new license had been issued after the commencement of the action on May 29th for the operation of a 6-unit mobile home court on the 10-acre site. The Ryans then petitioned for the writ of mandamus, which is the subject of this action, claiming the May 29th license was in violation of sec. 66.058, Stats. (relating to application for mobile home parks) and of the April 9th ordinance.
The trial was set for September 4th, but prior to trial by an amended return the defendant alleged the May 29th license had been surrendered and revoked on August 15th and a new license had been issued to the Apfelbecks on that date. At the trial all parties agreed that the May 29th license was no longer in effect.
The trial court dismissed the petition and quashed the alternative writ, stating the action was brought to test the validity of the May 29th license which was no longer in existence; the ordinance of April 9, 1968, was illegal; the town had adopted an interim zoning ordinance on July 2, 1968, effective July 11th, which preserved existing uses including the operation of a mobile home court whether it was being operated legally or illegally; and the petitioners would have to start another action to attack the validity of the license issued on August 15th. From the order quashing the writ and dismissing the petition, the Ryans appeal.
We agree with the trial court that the scope of the mandamus action could not properly encompass the license of August 15th because that license was not in existence at the time of the petitioners' application for the writ.
In State ex rel. Racine County v. Schmidt (1959), 7 Wis.2d 528, 534, 97 N.W.2d 493, this court approved the rule stated in State ex rel. Board of Education v. Hunter (1901), 111 Wis. 582, 588, 87 N.W. 485: ". . . mandamus will not lie to compel performance of an act by a public officer unless the act be one that is actually due from the officer at the time of the application."
The petitioners argue, however, that when mandamus is no longer applicable this court can grant any relief which the record will support. The trial court considered the granting of injunctional relief would be inequitable in this action. The cases relied on by the petitioners to support this argument are either distinguishable or exceptions to the scope of mandamus by considering the action to be a different form of action. Continuous-legal-duty cases, such as State ex rel. Milwaukee v. Milwaukee E. R. L. Co. (1911), 144 Wis. 386, 129 N.W. 623, 140 Am. St. Rep. 1025, which was the first case to expressly recognize mandamus as a proper remedy to enforce a continuous legal duty, are inapplicable. No continuous legal duty necessary to ground mandamus relief is present in this case. Mandamus cases which were treated as actions for declaratory relief were explained in State ex rel. Racine County v. Schmidt, supra, at page 536:
"Even where mandamus was determined not to be a proper remedy, however, this court has, in order to avoid unnecessary delay in the determination of public questions, treated an action in mandamus as if it were an action for declaratory relief. Thus a final decision has been reached with a minimum of uncertainty. State ex rel. Young v. Maresch (1937), 225 Wis. 225, 273 N.W. 225 (clear duty could not be ascertained without resolving issues of fact); Silgen v. Fond du Lac (1937), 225 Wis. 335, 274 N.W. 256 (mandamus to disburse city funds held improper in absence of allegation that funds were in the treasury but the legal effect of certain salary reductions was declared)."
In this type of case all the facts exist at the time of the commencement of the action whether it is a mandamus action or treated as an action for declaratory relief. The principle of these cases is not applicable. For such relief, a suit in equity would be appropriate and could reach facts occurring after the filing of the petition and is expressly authorized in secs. 62.23(7) (f) 2 and 62.23(8), Stats. See also Jelinski v. Eggers (1967), 34 Wis.2d 85, 148 N.W.2d 750; Bouchard v. Zetley (1928), 196 Wis. 635, 220 N.W. 209; Holzbauer v. Ritter (1924), 184 Wis. 35, 198 N.W. 852. the trial court was not required to consider this case an injunction suit or to enlarge the issues and consider subsequent events in order to give relief since no great public question was involved.
Mandamus is an extraordinary, drastic remedy to be used only where the duty of the public officer is clear and no other plain, adequate, and complete remedy exists. See Walter Laev, Inc. v. Karns (1968), 40 Wis.2d 114, 118, 119, 161 N.W.2d 227. In Underwood v. Karns (1963), 21 Wis.2d 175, 179, 124 N.W.2d 116, we stated: ". . . when such other remedy exists, courts uniformly refuse to entertain petitions for writs of mandamus," and in Burke v. Madison (1962), 17 Wis.2d 623, 631, 117 N.W.2d 580, 118 N.W.2d 898, this court stated: "Mandamus may not be maintained if some other plain, adequate, and complete remedy exists." One should choose the proper remedy and while the court in exceptional cases may treat a mandamus case as a different action, a court ought not be held in error for refusing to overlook forms of actions and the limitations of the scope of writs.
We agree with the trial court that the ordinance of April 9th is invalid. The town board thought it was adopting an ordinance by adopting the "Model zoning ordinance of the Town of Weston," but its action was insufficient to adopt the ordinance of the town of Weston by reference. A town may adopt provisions of a statute or prior ordinance by reference and sometimes establish grades of streets by reference to maps and books on file in a public office. Milwaukee v. Krupnik (1930), 201 Wis. 1, 229 N.W. 43. But the model ordinance referred to in this resolution was not published and does not constitute an ordinance such as may be the basis of adoption by reference. It is merely a model and not a prior ordinance. Besides it did not purport to be an interim zoning ordinance but rather was a regular zoning ordinance which can only be adopted in compliance with the notice and hearing requirements of sec. 62.23(7) (d), Stats., which was not done. An ordinance passed in noncompliance with the empowering statute is invalid. Whitefish Bay v. Wisconsin Employment Relations Board (1967), 34 Wis.2d 432, 149 N.W.2d 662.
We agree that the existing uses were frozen as of July 11th by the passing of the interim zoning ordinance on July 2d. However, this is not to say that illegal uses on July 11th were validated. While there may not have been on that date a valid zoning ordinance prohibiting the use of the 10 acres as a mobile, home trailer court, any such use of the land required the issuance of a permit or a license which could only be validly granted under other statutory authority upon the compliance with certain requirements. Consequently, as indicated by the trial judge, the legality of the operation of the mobile home court is still open to attack. The instant case does not foreclose the petitioners from contesting or having determined the validity of the ordinance of July 2d or of the license granted under date of August 15th or the legality of the prior licenses.
We think the trial court was correct in denying costs to both parties. Costs in the mandamus section are controlled by sec. 293.04, Stats., which provides the plaintiff may have costs if he shall recover judgment. This is a procedural statute. State ex rel. Wunderlich v. Kalkofen (1907), 134 Wis. 74, 113 N.W. 1091. Since judgment was not for the petitioners, they were properly denied costs.
By the Court. — Order affirmed.