State ex rel. Rosander v. Lippels

133 Wis. 211 | Wis. | 1907

Siebecicer, J.

The proceedings of the county board disclosed by the facts stated above were manifestly taken under sec. 670, Stats. (1898), irrespective of the requirements •of secs. 671 and 671a.. The proceedings are assailed upon the ground that the county board had no power under the statutes to change the boundaries of any town, unless the resident freeholders and electors of the town affected by 1 -such change shall first declare themselves, in the manner provided by these sections, to be in favor of the proposed change. By sec. 670, Stats. (1898), the county boards of this state are given power to set off, organize, vacate, and to change the boundaries of towns within their respective -counties, subject to the limitations thereafter prescribed. It provides that a majority of all members entitled to seats in the county board shall he required to vacate a town, and, except in certain specified counties, that no town can be set off, established, or organized unless at such time it contains a population of at least 125 inhabitants, of whom twenty-five shall be electors of the state and residents of the territory of such new town for at léast six months prior thereto. No specific provision is made in sec. 670, Stats. (1898), concerning the division of towns, nor does it require a petition or vote of the resident freeholders or electors to authorize county boards to exercise the special powers therein conferred on them.

The following section (671) deals specifically with the subject of the division of towns, and indicates that the legislature contemplated by the process of a division of towns by county boards the creation of two or more towns out of the territory embraced within the town sought to be divided. Division, therefore, results in a separating or dividing of an existing territorial body into two or more separate bodies, and this accords with the natural and ordinary meaning of the word. The restrictions placed upon this process also, sustain this conclusion. It is provided that in making a division no town shall be constituted or left with less than thirty-six sections, “unless each such town, after division, shall have real estate” of the specified assessed value, and that “no town shall be divided or have any part detached' therefrom so as to make its area less than thirty-six sections. . . . except when a majority of the votes cast in one or both such subdivisions . . . shall be in favor of such division.”' This shows that detaching territory from towns and attaching it to others is not considered the equivalent of dividing-the territory of a town and thus creating a new town in addition to those existing, and that no vote of the electors of' thé territory affected by detaching a part of one town and adding it to another is necessary to authorize the county board to change boundaries in this manner, unless it leaves. the area of the town less than thirty-six sections. This last restriction negatives the contention that, if county hoards can change boundaries by detaching part of a town and attaching it to another, they can by this means take off parcels and add them to other towns until nothing remains of it. We find nothing in the statutes respecting the execution of this special power which demands a unanimous vote of the members of the county board to validate any action under it.

Upon these considerations we conclude that the requirements of sec. 671, Stats. (1898), prescribing how a town may be divided, do not apply to the change of' boundaries of towns as affected by the.ordinances in question, and that the county board had power to pass them and that they are valid. The 'judgment of the circuit court was proper.

By the Court. — Judgment affirmed.-