March 3, 1959 —
April 7, 1959.
APPEAL from a judgment of the circuit court for Kenosha county: M. EUGENE BAKER, Circuit Judge. Affirmed.
For the appellant there were briefs by Shearer Shearer of Kenosha, and oral argument by Conrad J. Shearer.
For the respondents there was a brief and oral argument by K. Thomas Savage of Kenosha.
Action for a declaratory judgment as to the validity of a portion of the comprehensive zoning plan of the city of Kenosha. This zoning plan was provided for by an ordinance of the city enacted in 1954. The part of the ordinance alleged to be invalid in this action is contained in sec. 24 of the ordinance and is as follows:
"The city council may from time to time on its own motion or on petition, after public notice and hearings as provided by law and after report of the city plan commission, amend, supplement or change the boundaries or regulations herein or subsequently established.
". . . In case the proposed amendment, supplement or change be disapproved by the city plan commission . . . such amendment shall not be passed except by three-fourths vote of the full membership of the council."
An answer to the complaint was served and filed and the plaintiff demurred to the answer on the ground that the same did not state facts sufficient to constitute a defense.
In 1957 the city of Kenosha operated under the city-manager form of government. During that year the plaintiff proposed an amendment of the city's zoning ordinance to rezone certain lots in a subdivision of the city from "Commercial" to "A-Residential." The matter was referred to the city plan commission and on November 27, 1957, said commission voted five to one to recommend that the Kenosha city council reject the proposed ordinance that would effect the rezoning. On December 2, 1957, the ordinance for amendment was considered and acted upon by the city council. The vote taken upon the proposed ordinance resulted in four affirmative votes and three negative votes. The president of the council first announced that the ordinance had been adopted and immediately thereafter reversed himself and announced that the ordinance had not been adopted because it had not received a three-fourths vote of the city council as required by sec. 24 of the zoning ordinance.
The trial court determined that the provision in sec. 24 of the zoning ordinance was valid and controlling, and on April 28, 1958, judgment was entered dismissing plaintiff's complaint. The plaintiff appealed.
Before the trial court the plaintiff argued that the amending ordinance did in fact pass on December 2, 1957, because a majority of the council voted for it and sec. 64.07(3), Stats., provided that a majority vote of all the members of the council shall be necessary to adopt any ordinance or resolution. The plaintiff further argued that the provision of sec. 24 of the Kenosha zoning ordinance requiring a three-fourths majority vote to adopt an amendment to the zoning ordinance in cases where the proposed amendment is disapproved by the city plan commission is in conflict with the provisions of sec. 62.23(7) authorizing cities to adopt zoning ordinances.
The trial court stated that the word "majority" means the greater number or more than half but that word as used in sec. 64.07(3), Stats., did not define the limitations of the majority. Therefore the zoning ordinance did not conflict with the statute.
The statute establishes a minimum and the council could, under certain circumstances, require a larger majority vote. The trial court cited the case of Fox v. Racine, 225 Wis. 542, 275 N.W. 513, which held that where the state, in the exercise of the police power, has made certain regulations, a municipality may exact additional requirements so long as there is no conflict between the two. The Fox Case has been cited with approval in La Crosse Rendering Works v. La Crosse, 231 Wis. 438, 285 N.W. 393, and in Jefferson County v. Timmel, 261 Wis. 39, 51 N.W.2d 518.
In applying that principle to the present case the trial court held that the use of the word "majority" in the statute is not contradicted by the use of the words "three-fourths majority" in the ordinance, and that the two may stand side by side without any inconsistency.
Sec. 62.23(7), Stats., nowhere prohibits the provision of sec. 24 of the zoning ordinance. It is merely silent on the subject. Sec. 62.04 provides that for the purpose of giving to cities the largest measure of self-government compatible with the constitution and general law it is declared that secs. 62.01 to 62.26, inclusive, shall be liberally construed in favor of the rights, powers, and privileges of cities to promote the general welfare, peace, good order, and prosperity of the cities and the inhabitants thereof. Sec. 62.11(5) gives to cities in general language the management and control of the city's affairs, which powers are only to be limited by express language in the statutes.
Accordingly, we agree with the determination of the trial court that there is no conflict between the zoning ordinance and the state statutes.
The trial court further held that city councils may set up rules of procedure for their own government and cited Swindell v. State ex rel. Maxcy, 143 Ind. 153, 42 N.E. 528. That case dealt with rules of procedure adopted by ordinance. The plaintiff now cites Short-Conrad Co. v. School Dist. 94 Wis. 535, 69 N.W. 337, on the effect of a rule of the school board.
We cannot see that the provision in sec. 24 of the zoning ordinance was a rule of procedure by the city council. It was one provision in a comprehensive zoning ordinance. Hence no discussion of the effect of rules of procedure adopted by a legislative body is required.
By the Court. — Judgment affirmed.