Town of Washington v. City of Altoona

243 N.W.2d 404, 73 Wis. 2d 250, 1976 Wisc. LEXIS 1139
CourtWisconsin Supreme Court
DecidedJune 30, 1976
Docket75-10
StatusPublished
Cited by4 cases

This text of 243 N.W.2d 404 (Town of Washington v. City of Altoona) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Town of Washington v. City of Altoona, 243 N.W.2d 404, 73 Wis. 2d 250, 1976 Wisc. LEXIS 1139 (Wis. 1976).

Opinions

Heffernan, J.

This case presents the question of whether, in a district required by sec. 6.27 (1), Stats., to keep a registry of voters, nonregistered but otherwise qualified electors are permitted to vote in an annexation referendum. The trial court concluded that registration was not required and, accordingly, set aside an annexation referendum at which the officials of the town of Washington refused to permit nonregistered electors to vote. We conclude that an annexation referendum is an election, and in districts where sec. 6.27 (1), is mandatory voters must be registered.

This litigation arose out of the passage of an ordinance by the city of Altoona annexing to it certain lands that lay in the adjacent town of Washington in Eau Claire county. The passage of that ordinance on November 6, 1974, was preceded by the circulation of an annexation petition, the sufficiency of which is not questioned in these proceedings. Under sec. 66.021 (5), Stats., the annexation is, nevertheless, subject to a referendum procedure. That statute provides that the referendum “shall be held at some convenient place within the town” (sec. 66.021 (5) (a)), and the referendum shall be conducted by the town officials (sec. 66.021 (5) (d)).

A notice of the referendum to be held on December 16, 1974, was published and circulated by the town of Washington. That notice contained the language:

“All qualified registered electors residing in the territory proposed for annexation shall be entitled to vote in the referendum.”

On December 16, 1974, the circuit court enjoined the election scheduled to be held that day on the ground that registration of electors was not required. Subsequently, [253]*253the town published and circulated a new notice of referendum to be held on December 30,1974.

The town officials complied with the order of the circuit court in that the notice omitted all reference to the ineligibility of nonregistered voters. However, at the referendum election, election officials of the town of Washington refused to permit “some” otherwise qualified electors to vote on the ground that they were not registered. At that election 124 ballots were cast. Thirty-six favored an annexation and 88 were against. Hence, under the terms of sec. 66.021 (5) (g), Stats., the territory would revert to the town of Washington.

Subsequently, an action was brought to set aside the referendum on the ground that qualified but nonregis-tered electors had been improperly excluded. On February 3, 1975, the circuit court held that the purported annexation referendum of December 30, 1974, was null and void. The town of Washington was ordered to conduct a new referendum in which qualified voters were to be permitted to vote although they were not registered. It is from this order that the town of Washington appeals.

It is conceded that the town of Washington, under the terms of sec. 6.27 (1), Stats., is a municipality with a population of over 5,000. Sec. 6.27 (1) provides:

“(1) Every municipality over 5,000 population shall keep a registry of electors. Where used, registration applies to all primaries and elections.”

Sec. 66.021 (5) (d), Stats., provides:

“(d) How conducted. The referendum shall be conducted by the town election officials but the town board may reduce the number of such officials for that election. The ballots shall contain the words ‘For annexation’ and ‘Against annexation’ and shall otherwise conform to the provisions of s. 5.64 (2). The election shall be conducted as are other town elections in accordance with chs. 6 and 7 insofar as applicable.” (Emphasis supplied.)

[254]*254It would appear, therefore, reading sec. 6.27 (1), Stats., in conjunction with sec. 66.021 (5) (d), that a referendum, which is denominated therein as an “election,” is to be conducted in conformance with the registration provisions of sec. 6.27. The trial judge, however, relied upon the provisions of sec. 66.021 (6), which deals specifically with qualifications of persons entitled to vote in a referendum election. That statute provides:

“(6) Qualifications. Qualifications as to electors and owners shall be determined as of the date of filing any petition, except that all qualified electors residing in the territory proposed for annexation on the day of the conduct of a referendum election shall be entitled to vote therein. Residence and ownership must be bona fide and not acquired for the purpose of defeating or invalidating the annexation proceedings.”

The trial judge emphasized that this latter statute provides:

. . that all qualified electors residing in the territory proposed for annexation on the day of the conduct of a referendum election shall be entitled to vote therein.”

From this he concluded that registration was unnecessary and that bona fide residence on the day of the referendum was sufficient. In addition, the trial judge and the city of Altoona in its brief expressed doubt that an annexation referendum is an election in the sense referred to in sec. 6.27, the registration statute. •

We conclude that this doubt is without basis in the law. Sec. 66.021 (5) (d), Stats., specifically refers to a referendum as an “election.” Moreover, this court, since at least 1906, has held that a referendum is an election and that, whether a vote involves a choice of candidates or a choice of policy, a voting procedure under the statutes is an election. Hall v. Madison (1906), 128 Wis. 132, 107 N. W. 31; Vulcan Last Co. v. State (1928), 194 Wis. 636, 217 N. W. 412.

[255]*255Holding:, as we do, that a referendum is an election, the question remains whether the provisions of sec. 68.021 (6), Stats., have the effect of mandating that all electors who are “qualified” shall have the right to vote whether registered or not.

The Wisconsin Constitution, as now amended, provides that every person of the age of eighteen or upwards residing in the state for six months preceding any election who resides in an election district shall be deemed a qualified elector, provided, however, that the legislature may set a residence requirement in the voting district not to exceed thirty days.1

This constitutional direction is implemented by sec. 6.02 (1), Stats., which provides that any person who has resided in an election district for ten days before an election is an “eligible” elector.

Sec. 6.02 (2), Stats., further demonstrates the legislature’s interpretation of the constitutional provision. That statute gives to a state resident eighteen years or older the right to vote in the district in which he was last “qualified” as an elector although he may not vote in his district of residence because of inability to fulfill the ten-day requirement. Sec. 6.10 (3) has an analogous provision.

It is thus apparent that the constitution and the statutes use the term “qualified elector” and “eligible elector” interchangeably. The terms are synonymous. The [256]*256effect of the constitutional provision is to give the legislature the prerogative of setting the election district residence requirement, but conditions that grant of power by stating that in no case shall more than thirty days residence be required by the legislature.

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Town of Washington v. City of Altoona
243 N.W.2d 404 (Wisconsin Supreme Court, 1976)

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Bluebook (online)
243 N.W.2d 404, 73 Wis. 2d 250, 1976 Wisc. LEXIS 1139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-washington-v-city-of-altoona-wis-1976.