#### Lutien and others, Appellants, vs. City of Kewaunee and others, Respondents.

*April 27*—

October *4, 1910.*

*Municipal corporations: Annexation of territory; Failure to comply with statute: Pleading: Remedy: Injunction: Limitation of actions: Oral demurrer: Appeal: Harmless errors.*

1. An averment in a complaint that an ordinance of annexation “was not published in accordance with law” states a legal conclusion.

2. An averment that in making such annexation the city authorities acted upon a petition which was not signed by a majority of the electors and the owners of one third of the taxable property in the district sought *to*be annexed according to the last tax roll including that district, sufficiently asserts that the annexation was unauthorized.

3. The proper remedy in such case is a class action in equity by the property holders and taxpayers in the territory sought to be annexed.

4. No rule of law or equity forbids the court to entertain a suit to enjoin the acts of public officers injurious to the plaintiffs, *aP*tempted to be done under an invalid ordinance or statute.

5. An oral demurrer to a complaint does not raise the objection that the cause of action is barred by limitation.

6. Where it appears on the face of the complaint that the cause of action is so barred, and the statute of limitation is pleaded in the answer, the appellant is not prejudiced by the ruling sustaining an oral demurrer and dismissing the complaint. In such case the judgment will be affirmed, with leave to the plaintiff to apply to the ¡court below to amend his complaint and plead other facts, if any exist, in avoidance of the bar of the statute.

Appeal from a judgment of tbe circuit court for Kewau-nee county: MaetxN L. Lueck, Judge.

*Affirmed.*

Eor tbe appellants there were briefs by *George W. Wing*and *Oady, Strehlow & Joseph,*and oral argument by *F. G. Cady.*

Eor tbe respondents there was a brief signed by *W. A. Cowbell*and *Nash <& Nash,*and oral argument by *A. L. Nash.*

*243Tbe following opinion was filed May 24, 1910:

TimxiN, J.

Tbe appellants, averring tbat tbey are owners of real estate forming part of tbe territory attempted to be annexed to tbe city of *Keiuaunee,*but not expressly stating-tbat tbey are taxpayers, allege tbat they brought this suit in equity for themselves and in behalf of all other property owners and taxpayers similarly situated. Tbe relief sought was to enjoin tbe city officers from0 levying,any tax upon tbe said real estate of tbe plaintiffs and from exercising any acts of jurisdiction over tbe territory sought to be annexed, and tbat tbe city clerk be enjoined from making out and delivering to tbe said treasurer a tax roll and tax warrant including said real estate of tbe plaintiffs therein, and tbat tbe city treasurer be enjoined from collecting or attempting to collect taxes on ■said lands, etc. Tbe wrong alleged to have been committed against plaintiffs is tbat tbe city attempted to annex certain described territory containing the lands of tbe plaintiffs and bring this within its corporate limits, but acted upon a petition which was not signed by a majority of tbe electors and tbe owners of one third of tbe taxable property in tbe district sought to be annexed according to tbe last tax roll including tbat district. Other alleged errors are tbat tbe petition for annexation purported to be signed by certain corporations which bad never authorized any person or persons to affix their several signatures, and tbat tbe ordinance of annexation “was not published in accordance with law;” also tbat the annexed territory was not adjacent to tbe city, was not necessary for building, street, or other municipal purposes, was almost exclusively agricultural lands sparsely settled or lands wholly unoccupied, and annexation was attempted to be made for the sole and only purpose of increasing tbe revenue of said city by taxing tbe property so annexed. It is also averred tbat tbe taxes of tbe plaintiffs will be increased by such annexation.

*244When tbe cause came on for trial the defendants objected to any evidence being received to prove the averments of the complaint, because facts sufficient to constitute a cause of action were not averred, and because the complaint sought to' set aside and annul what had been done by legislative power, a thing which the court had no jurisdiction to do. The learned circuit court sustained the objection, excluded the evidence, and judgment was rendered for the defendants.. The objection and exception were preserved by bill of exceptions, and the plaintiffs appealed from the judgment.

¡We do not thirds: the ruling of the learned circuit court can be supported on the ground that the plaintiffs have mistaken their remedy, or that the power of the court cannot be invoked to restrain the acts of municipal officers who attempt to proceed to the damage of the plaintiffs under an ordinance invalid for failure to comply with the statutory conditions precedent to the enactment of such ordinance. This is not a suit to arrest the act of legislation while in progress, but to restrain official acts attempted to be exercised under the authority of an invalid ordinance. The same question has been many times passed upon when officers are restrained from acting under an unconstitutional statute. In *Chicago & N. W. R. Co. v. Langlade Co.*56 Wis. 614, 14 N. W. 844, in a suit in equity to set aside taxes, the validity of acts of the legislature changing the boundaries of a county and dividing it into towns and providing for their organization was examined into, but the case finally turned upon the point that the officers levying the tax were officers *de facto*and their official acts under these statutes could not be inquired into collatei*ally. In the instant case the plaintiffs seek to prevent alleged unlawful action under color of office. In *Smith v.*Sherry, 54 Wis. 114, 11 N. W. 465, which is an action for trespass to land, where the plaintiff claimed title under a tax deed, the acts of the county board in detaching territory from one town and adding it to another were examined into and *245held invalid; and a like investigation was made in *Chicago & N. W. R. Co. v. Oconto,*50 Wis. 189, 6 N. W. 607, where the action was to recover back money paid for taxes. *Earles v. Wells,*94 Wis. 285, 68 N. W. 964, was a suit in equity by the owner of property within the city subject to taxation to enjoin the defendants from acting under an invalid ordinance, and the complaint also asked to have the ordinance declared null and void because it created a liability on the city in excess of the constitutional limit of municipal indebtedness. The suit was sustained. In *Tilly v. Mitchell & L. Co.*121 Wis. 1, 98 N. W. 969, the action was by persons suffering a special injury not common to the whole public to declare certain ordinances void and restrain action thereunder, and the distinction is pointed out between actions of this kind where the plaintiff suffers or will suffer from the •enforcement, of the void ordinance an injury special or peculiar to himself and not common to the public in general, .and those in which the injury or damage affects the public. The same kind of action by one specially affected was maintained in *Bonnett v. Vallier,*136 Wis. 193, 116 N. W. 885; and similar authorities are cited by appellant as follows: *Mayor v. Radecke,*49 Md. 217, 33 Am. Rep. 239; 2 High, Injunctions, § 1254; *Pittsburg’s Appeal,*79 Pa. St. 317; *Delphi v. Startzman,*104 Ind. 343, 345, 3 N. E. 937; 20 Am. & Eng. Ency. of Law (2d ed.) 1154; 28 Cyc. 212.

Cases like *Stedman v. Berlin,*97 Wis. 505, 73 N. W. 57, or *Linden L. Co. v. Milwaukee E. R. & L. Co.*107 Wis. 493, 83 N. W. 851, and similar cases, are not in point here, for this suit is to restrain unauthorized action of municipal officers specially injurious to the plaintiff and his class and there is no other adequate remedy. *Certiorari*would not reach the question of the number of electors and landowners in the annexed district. *Quo warranto*is manifestly inappropriate, and, in short, the remedy is in equity, as amply .shown by the foregoing authorities.

*246We consider the statement of defective publication a conclusion of law and insufficiently pleaded, but tbe averment that the petition upon which the city council acted was not signed by a majority of the electors and the owners of at least one third of the taxable property in the territory attempted to be annexed according to the last tax roll to be a good pleading of the statute (sec. 925 — 18, Stats. 1898, as amended by ch. 124, Laws of 1907), which provides:

> “A majority of the electors and the owners of at least one-third of the taxable property according to the last tax roll, in the territory adjacent to such city may together present a petition to the common council of such city, asking for annexation thereto.”

Sec. 925 — 19, Stats. (1898), provides that “at any regular meeting of the common council after the filing of said petition with the city clerk an ordinance may be introduced providing for the annexation of such adjacent territory.” Sec. 925 — 17 provides that territory lying adjacent to any city may be annexed to such city in the manner thereinafter set forth. The pleading in this respect sufficiently negatived compliance with the statute on the part of the city attempting to make the annexation, and the statute makes such compliance a condition precedent to the exercise of the power of annexation.

Were this case to end here, a reversal of the judgment of the court below would be inevitable, but- sec. 925- — 21, Stats. (1898), relating to the same subject, declares:

> “The adoption of said ordinance shall operate to annex such territory to said city and to the ward or wards designated therein ninety days after the same is passed and published. The validity of the proceedings annexing such territory shall not be called in question collaterally in any court of this state, nor be called in question in any other manner in any such court unless the action or proceeding therefor be commenced within ninety days after such ordinance is adopted.”

A somewhat similar statute prescribing the same length of time was construed and applied in *Application of Clark,*135 *247Wis. 437, 115 N. W. 387. Sec. 925 — 21, Stats. (1898), is peculiar, however, in tbe respect that upon tbe adoption of tbe ordinance it does not go into force or operate to annex tbe territory to tbe city until ninety days after tbe ordinance is passed and published. During ninety days after its adoption, without reference to tbe time of publication, any person legally injured by such adoption may bring tbe proper suit to defeat tbe annexation and call in question tbe validity of tbe ordinance. But ninety days after such ordinance is adopted tbe time for calling it in question expires whether publication is defective or not, and even if no publication has taken place.

Tbe complaint in this action avers “that since said pretended annexation of said territory to said city tbe assessor of tbe defendant city of *Kewaunee*has pretended to assess tbe real estate of said plaintiffs,” etc.; also, that tbe aldermen threaten and are about to levy taxes on said real estate, and that tbe city clerk threatens and is about to make out a tax roll and warrant. These averments relate to acts done pursuant to attempted' annexation which could only have been done after three months bad expired from tbe passage and publication of tbe ordinance. Tbe annexation is spoken of as a past fact; that is to say, acts are alleged to have occurred “since tbe pretended annexation.” How can we say that this means since tbe pretended passage of tbe ordinance? And yet, unless it means this, tbe complaint shows on its face that more than three months bad elapsed from tbe date of tbe passage and publication of tbe ordinance, because it showed that tbe pretended annexation bad been completed and existed as an accomplished fact, although not legally accomplished. Tbe answer pleads this short statute of limitations. Tbe oral demurrer does not of itself raise tbe defense of tbe statute of limitations. But tbe record returned on appeal *prima facie*shows that tbe appellant is in no wise aggrieved or injured by tbe dismissal of tbe complaint by tbe circuit court, because that same dismissal must inevitably result upon tbe facts now before us. Tbe statute forbids us to reverse in such case. *248Ob. 192, Laws of 1909. If, however, there are any facts in avoidance of this statute of limitations, the plaintiffs should be permitted by the circuit court, upon the return of this record, to file an amended complaint setting forth such matter in avoidance. Otherwise the judgment dismissing the complaint will be affirmed. The judgment is therefore affirmed subject to the right of the plaintiff to have the judgment reopened by the circuit court and an amended complaint filed upon a showing of facts sufficient to avoid the bar of the statute, which otherwise appears to conclude his action.

*By the OouH.*— Judgment affirmed, and cause remanded for further proceedings according to this opinion.

The following opinion was filed October 4, 1910:

TimliN, J. On motion for rehearing the plaintiffs contended that the statute limiting the time of attack to ninety days was unconstitutional on various grounds, *inter alia*that the preliminary publication required by sec. 925 — 19, Stats. (1898), had not been given or had not been properly given.

Jf this publication was not made that is a matter for the plaintiffs to set forth in avoidance of the statute in their amended complaint as specified in the opinion of the court. The plaintiffs should present this case on a proper complaint as indicated in the opinion, raising all the questions which they now seek to present on rehearing.

*By the Court.*— The motion for a rehearing is denied, with $25 costs.