#### Application of Clark and others for the Incorporation of the Village of Unity: Balle, Appellant.

*January 28*

May 8, *1908.*

*Dismissing appeal: Judgment: ’Validity; Effect of want of jurisdiction: Municipal corporations: Incorporation: Time for election: Directory provisions of statute: Courts: Co-orcLinate jurisdiction: Injunction against compliance roith order of other court: Failure to exercise corporate powers: Proceedings to vacate incorporation: Limitation of action.*

1. Where respondent moved to dismiss an appeal from an order incorporating a village because the appeal was not perfected within the required time from the service of such order, and the evidence was conflicting as to whether the order was ever served, *held,*that proof of service should he free from doubt, and, in the absence of clear proof, the motion should be denied.

2. There is a distinction between want of jurisdiction as applied to cases wherein the court assumes to act as to a particular subject matter outside its constitutional power to adjudicate, and those cases within its power but wherein it is prohibited from exercising jurisdiction by established principles of remedial procedure. In cases of the former class the judgments are void for want of power; in cases of the latter class the judgments are erroneous, but are binding on parties to the litigation until reversed on review by some superior court or otherwise set aside.

'3. An order for the incorporation of a village situated partly in two counties was made, pursuant to sec. 861, Stats. (1898), by the circuit court for one of the counties. In a *quo warranto*action in the circuit court for the other county the attempted incorporation was adjudged void. A second order of incorporation was made by the court that made the first order. On a petition to vacate this second order, on the ground that it was invalid because the village was already incorporated under the previous order and the judgment of the court in the *quo warranto*action to the contrary was void because that court had no jurisdiction in a *quo warranto*action to set aside or restrain the order made in a court of co-ordinate power, *held,*that the judgment in the *quo warranto*action was not void because beyond the scope of the court’s jurisdiction, but erroneous because prohibited by well established principles of remedial law, and, until reversed or otherwise vacated, it was-binding on the petitioner in this action, and precluded his challenging the second order of incorporation.

*438*4.*Where a statute prescribes a thing to be done within a specified time, and there is no substantial reason why the thing may not as well, he done after the time prescribed as before — no presumption that by allowing it to be so done it may work an injury or wrong — nothing in the act itself, or in other acts relating to the same subject matter, indicating that the legislature did not intend that it should1 rather he done after the time prescribed than not to be done at all, there the courts assume that the intent was that, if not done within the time prescribed,, it might be done afterwards.

5. See. 862, Stats. (1898), providing that an election shall he held within sixty days of the date of an order of the circuit court incorporating a village, is directory merely, and therefore an election held a year after the date of an order was valid, it appearing that the delay was due to certiorari proceedings begun to test the validity of the incorporation, which operated to stay matters pending a decision by this court.

6. Where a circuit court for one county ordered, pursuant to sec. 861, Stats. (1898), the incorporation into a village of territory lying in two counties, and the circuit court of the other county enjoined the carrying out of such order, held, that the action of the officers appointed by the first court in proceeding with the incorporation, and the action of the village officers exercising the municipal functions, while technically a violation of the injunction, was lawful and in good faith in compliance with the-statutory mandate and an order imposed by a court of co-ordinate jurisdiction, and the attempted interference by the other-court was without legal warrant and ineffective to impart the-quality of wrongfulness to such action.

7. Where remonstrants to the incorporation of a village resorted to various legal remedies to prevent the officers of such village-from carrying out the incorporation and exercising the corporate functions, and had them enjoined without good cause from acting, held that, although the officers and village failed to exercise all the powers conferred by the statute, they did assume to act in good faith under the incorporation and to exercise their statutory powers, any failure in respect thereto being attributable to the action of remonstrants.

8. Sec. 8536, Stats. (Supp. 1906; Laws of 1901, ch. 39), providing that any action questioning the validity of village incorporation, whether tested by *certiorari*or other action or proceeding, must he brought within three months after such incorporation hut not thereafter, applies to a proceeding by petition for the vacation of an order incorporating a village, and such proceeding not having been brought within the required time, should he dismissed.

*439Appeal from an order of tbe circuit court for Marathón county: Geobgke W. Bubnell, Judge; also> from an order of tbe same court: W. C. SilveethoeN, Circuit Judge.

*Both orders affirmed.*

Tbe petitioner, *Christian Baile,*seeks to bave tbe proceedings of tbe Marathón county circuit court for the incorporation of tbe village of Unity set aside and vacated upon tbe ground that such proceedings are illegal and void. Petitioner alleges that be is a resident, and taxpayer of tbe territory sought to be incorporated. He asks relief against an order of May 20, 1905, whereby tbe Marathon county circuit court ordered an incorporation of tbe village of Unity, subject to be ratified by tbe electors of this territory at an ejection directed to be held pursuant to such order and tbe statutes. Tbe facts of this proceeding for incorporation of this village in tbe Marathon county circuit court and likewise tbe facts of a *certiorari*action are set forth in tbe equity suit of *Salter v. Cooh,*an appeal to this court from the Clark county circuit court, reported in 131 Wis. 20, 110 N. W. 823. Tbe facts there stated need not be repeated here. In addition to tbe facts therein stated tbe petitioner alleges that tbe circuit court for Marathon county on June 4, 1903, on petition of Clark and others, ordered tbe village of Unity to be incorporated, that tbe territory embraced therein lies partly in Clark and partly in Marathon county, that tbe electors ratified such order of incorporation, and that tbe village therefore in June, 1903, entered upon tbe discharge of village franchises and functions; that tbe Clark county circuit court in an action of *quo warranto*on March 21, 1904, entered judgment declaring tbe incorporation proceedings void and ineffectual for want of jurisdiction; and that part of tbe territory involved in tbe incorporation is alsO' included in tbe proceeding now attempted to be vacated. It appears that a temporary injunctional order was issued in tbe Salter equity suit on May 25, 1906, and served on tbe inspectors named in tbe order of incorporation of May 20, *4401905, restraining them from holding the election noticed by them to he held on May 26, 1906, for determining the question of incorporation under the order of May 20, 1905. This order was in force on election day, May 26, 1906. The inspectors held the election noticed by them for May 26th, canvassed the votes cast, prepared a statement thereof, and caused the same to he recorded in the registers of deeds’ offices in Marathon and Clark counties. It is alleged that these inspectors immediately thereafter, as provided by the statutes, noticed an election for the election of village officers; that before the day set by them in the notice the court by another injunctional order in such equity action restrained them from holding this election to elect village officers; that such inspectors, however, proceeded and held such election, canvassed the votes cast for village officers, and declared certain persons so voted for by the electors to he the duly elected village officers. It is further averred that the alleged village' ■officers at no time thereafter exercised the functions of village officers, and that the Clark county circuit court, after the election of village officers, cited the persons appointed as inspectors in the order of incorporation of May 20, 1905, before the court and proceeded against them for violation of its injunctional orders, adjudged them guilty of contempt of court, and punished them by the imposition of a fine and costs, and that upon the hearing of this contempt proceeding the court made another order in open court enjoining the alleged village officers so elected from doing any acts as such officers and from exercising any of the functions of the village; and it is averred that such officers then assented to abide by such .order. Other irregularities and defects alleged as appearing upon the face of the proceeding need not he specifically stated here, not being essential to the decision on this appeal. The circuit court for Marathon county, after hearing the petitioner and. the parties in opposition thereto, entered an order denying petitioner’s application for *441relief on May 17, 1907. Tbe petitioner bas appealed from snob order and from tbe order of tbe court dated May 20, 1905, incorporating the village jof'Unity. Tbe respondents, upon affidavits and an order to sbow cause made returnable before tbis court, moved to. dismiss tbis appeal upon tbe ground that tbe order of incorporation of May 20, 1905, was duly served on remonstrants’ attorneys and service thereof was admitted by them in tbe month of June, 1905; that tbe time within which to appeal therefrom bad expired before tbe appeal of tbis appellant was in fact taken. Remonstrants’ attorneys deny tbe service of a copy of such order upon them, and deny that service thereof was ever made or admitted as alleged in tbe affidavits and tbe order.

*B. J. MacBride*and *Geo. L. Jacques,*for tbe appellant.

Eor tbe respondents there was: a brief by *Brown, Pradt & Genrich,*attorneys, and *Kreutzer, Bird &*Bosenberry, of counsel, and oral argument by *M. B. Bosenberry*and *Neal Brown.*

Tbe following opinion was filed March 10, 1908:

SiebecKee, J.

Respondents’ motion to dismiss tbe appeal because tbe appeal was not perfected within tbe time prescribed for appealing from orders raises an issue of fact upon tbe affidavits of tbe attorneys for tbe respective parties and presents a sharp conflict of evidence on tbe question. Tbe fact of service of a copy of tbe order of incorporation on remonstrants’ attorneys is directly affirmed on tbe one side and as positively denied on tbe other. Tbe relief asked by tbe motion to dismiss tbe appeal would in effect be determinative of tbe question of appellant’s right to a review before tbis court. In view of such a result tbe proof of service of a copy of tbis order should be free from any doubt. It cannot be said that tbe proof shows tbe fact of service so clearly as to call for dismissal of tbe appeal.

Appellant, upon tbe merit of bis petition, assails tbe in*442corporation of the village upon many grounds, all of which need'not be considered in determining his legal rights under the allegations of his petition. He avers that he, as an interested party in the incorporation proceeding, can thus attach it to determine its validity for the purpose of vacating- or setting aside the incorporation. Tie alleges that the attempted incorporation proceeding, culminating in an election under the order of incorporation of May 20, 1905, is-wholly void because the village of Unity had been incorporated in a proceeding for that purpose in the Marathon county circuit court by an order made June 4, 1903, and a subsequent election, under it at which the electors declared in favor of incorporation. It is conceded that by a judgment on September 11, 1903, the circuit court for Clark county, in a *quo warranto*action instituted on the relation of residents of the territory embraced in this village, declared this proceeding void. The question whether or not a proceeding to incorporate a village, instituted in a circuit court, can ’be attacked as invalid by a *quo warranto*action in a court of coordinate jurisdiction, we need not, nor do we, decide. But assuming, as appellant contends, that the court in such *quo warranto*action is restricted in its jurisdiction as in other actions respecting proceedings in a court of co-ordinate jurisdiction, still we are of opinion that his contention cannot prevail upon the record before us. The argument is made that the Clark county circuit court in such *quo warranto*action was wholly without jurisdiction and therefore its judgment was ineffectual and did not vacate and set aside the-incorporation proceedings as adjudged on the record. This-claim is made upon the broad assumption that the Clark county circuit court had no jurisdiction of the subject matter of litigation and hence its action was without power, and therefore its decree was ineffectual in the matter. This contention omits to distinguish between want of jurisdiction as-applied and used in cases wherein the court assumes jurisdie*443tion as to a particular subject matter outside the scope of its constitutional power to adjudicate and those cases within the scope of its constitutional power to adjudicate, but wherein it is prohibited from exercising jurisdiction by established principles of remedial procedure. In cases of the former class the judgments are void for want of power. In eases of the latter class the judgments are erroneous, but are binding on parties to the litigation until reversed on review hy some superior court or otherwise set aside. Both classes of cases are classed as instances wherein courts act without jurisdiction, but the effects of their judgments in the two classes of cases are widely different. Bull elaboration of this subject is contained in recent cases in this court. See *Harrigan v.*Gilchrist, 121 Wis. 127, 227 *et*seq., 99 N. W. 909; Jackson *M.*C*o. v.*Scott, 130 Wis. 267, 110 N. W. 184.

Our attention is called to the decision in the equity case of *Salter v.*Cook, 131 Wis. 20, 110 N. W. 823, pertaining to the proceedings for the incorporation of this village, and the cases therein referred to, for support of the claim that the court had no power to adjudicate the questions raised in the *quo warranto*action. The decision in *Salter v. Cook*is based on the ground “that a judgment or order of one circuit court will not. be set aside nor restrained by another circuit court of co-ordinate jurisdiction.” The decision of the case proceeds upon the theory underlying the ruling of the cases wherein courts are said to be without jurisdiction because they are prohibited from exercising such power by well established principles of remedial law. An application of this principle to the claim of petitioner respecting the judgment in the *quo wari'anto*action must result against his contention. It is clear that the subject matter of this action was of such a nature as to be within the power of the Clarlc county circuit court to adjudicate, but that it is prohibited from exercising jurisdiction for the purpose of setting aside or restraining proceedings in a court of co-ordinate jurisdic*444tion. Under these circumstances it follows that petitioner’s ■assault upon the judgment in *quo*warranto, as one wholly void for want of power in the court, is not sustained. The judgment remaining unreversed or otherwise vacated is, in this view of the case, binding on him as one of the interested parties to the proceeding. This disposes of petitioner’s •claim as to this question.

It is averred that the village was not incorporated under .the order of May 20, 1905, because there was no election held within sixty days of such order, as required by sec. 862, Stats. (1898), “for the purpose of determining whether or not such territory shall be an incorporated village.” It is evident from the record that such election was postponed on account of the *certiorari*action, which operated *to*stay proceedings in the matter until decided by this court on January 30, 1906. An election was held on May 26, 1906, which resulted in favor of incorporation, as ordered May 20, 1905. Sec. 862 provides: “Such inspectors shall, - without unnecessary delay, give notice of a meeting of the electors •of the territory ... to be held within sixty days of the date of such order.” The question is: Are the sixty days ■an absolute limit within which the election must be held after the order of incorporation is made, or is it a directory statute ? The object to be attained by this prevision of the statutes furnishes the grounds for its interpretation. The sole purpose of this election is that -the electors of the territory may by ballot register their decision upon the question of incorporation. It is of little moment whether this decision be so made within sixty days after the making of the order or at some subsequent time, if it be not so remote that it can be reasonably said that the matters involved in an election within the sixty days after the order have not been changed in a, marked and substantial way. We are of the opinion that this statute should be held to be directory as to the time for holding such election. In its substance and purpose it *445is ■within, the doctrine concerning directory statutes declared in *State ex rel. Cothren v. Lean,*9 Wis. 279, 292:

> “That where there is no substantial reason why the thing to be done might not as well be done after the time prescribed as before — no presumption that bv allowing it to be so done it may work an injury or wrong — nothing in tire act itself, or in other acts relating to the same subject matter, indicating that the legislature did not intend that it should rather be done after the time prescribed than not to- be done at all, there the courts assume that the intent was that, if not done within the time prescribed, it might be done afterwards.”

As indicated above, there is no substantial reason why the election may not as well be held within a reasonable time after the sixty days have expired as before. It may also be said that if it cannot be so held if is more likely to operate to the injury of the electors than if held thereafter. If not permitted so to be held it would practically place the electors at the will of the inspectors, when they could not be compelled by legal process to call an election, under the discretion given them, until the sixty days had expired. Oases sustaining this construction are *Williams v. Ely,*13 Wis. 1; *Burlingame v. Burlingame,*18 Wis. 285; *State ex rel. Bancroft v. Stumpf,*21 Wis. 579; *Smith v. Waggoner,*50 Wis. 155, 6 N. W. 568; *Klatt v. Mallon,*61 Wis. 542, 21 N. W. 532; *Allen v. Allen,*114 Wis. 615, 621, 91 N. W. 218.

It is urged that the holding of an election for the purpose of determining whether or not the village should be incorporated under the order of May 20, 1905, was in violation of the in junctional order in the Salter equity suit brought in Clark county, and that such election was therefore invalid. True, the holding of the election was a technical violation of this in junctional order. As we have seen, it was unlawful for the Clark county circuit court to interfere with the proceeding to incorporate in the Marathon county circuit court. *Salter v. Cook,*131 Wis. 20, 110 N. W. 823. To hold that a violation of this in junctional order operated to nullify acts *446done pursuant to and in conformity with the order of the Marathon county circuit court would lead to the absurdity of permitting one court to interfere with and restrain proceedings in another court of co-ordinate jurisdiction, and thus accomplish indirectly that which, when properly challenged, it has no jurisdiction to accomplish directly. True, the persons so enjoined may he guilty of offending against the order of the circuit court for Olarlc county which issued it, hut such a result cannot be carried into and render nugatory the proceeding of the Marathon county circuit court. In so far as the circuit court for Clark county attempted to interfere with the proceedings in Marathon county it acted without legal warrant and could not thereby impart the quality of wrongfulness to the inspectors’ conduct, which was in compliance with and an attempt to give effect to- the order of incorporation and the statutes. The acts and conduct of the inspectors must be viewed in the twofold aspect: on the one hand as technically offending against an in junctional order of the one court, which .was acting without a proper exercise of jurisdiction, and on the other as acting lawfully and in good faith in compliance with the statutory mandate and an order imposed by a court of co-ordinate jurisdiction. We can therefore consider the conduct of the inspectors in holding this election only in its bearing on the proceedings in the Marathon county circuit court and determine whether they acted in good faith in carrying out the orders of this court and the mandates of the statutes. Under these circumstances it cannot be said that the inspectors, or the village officers elected pursuant to an election noticed by such inspectors, acted in bad faith in assuming to act under the order and to exercise the powers conferred by eh. 40, Stats. (1898), upon villages.

It is asserted that, if the incorporation be held valid and effectual, then the village and its officers failed in good faith to exercise the powers so conferred by statute. It is true that all of the village functions so conferred were not exer*447■cised, but good and sufficient explanation is offered by tbe record for sucb partial nonaction. It appears tbat tbe remonstrants to sucb incorporation availed themselves of every legal weapon to prevent tbe officers from acting, and bad them enjoined, though without good cause, by tbe circuit •court of another county. This undoubtedly deterred the officers from a full performance of their official duties in exercising the functions of a village and furnishes the reason why they probably partially failed in the performance of their official duties. It is sufficiently clear that the officers attempted to assume all of the functions of the village, but were deterred' by the wrongful interference of other interested parties. Upon the record now before us, we must hold that this village and its officers assumed in good faith to act under and to exercise the powers conferred on it by statute for a period of three months after its incorpox’ation. Sec. 853&, Stats. (Supp. 1906; Laws of 1901, ch. 39), provides that any question of the validity of such incorporation, whether tested by *certiorari*or by any other action or proceeding directly for that purpose, may be brought “at any time within three months after such incorporation, but not thereafter.” Petitioner’s proceeding is of this nature, .and Ms rights in this respect are governed by this statute. He did not commence his proceeding within the three-months limitation of this section and he is therefore precluded from prosecuting his petition.

Upon these considerations his petition was properly dismissed by the trial court, and its order of dismissal must be ■affirmed.

*By the Oourt.*— It is so ordered.

A motion by the appellant for a rehearing was denied May 8, 1908, and the mandate was amended by adding thereto as follows: “The orders appealed from are both af-ffirmed.