State ex rel. Town of Holland v. Lammers

• Decision Date: 20 June 1901
• Citation: 113 Wis. 398,86 N.W. 677
• Parties: STATE EX REL. TOWN OF HOLLAND ET AL. v. LAMMERS ET AL.
• Court: Wisconsin Supreme Court

113 Wis. 398

86 N.W. 677

STATE EX REL. TOWN OF HOLLAND ET AL.

v.LAMMERS ET AL.

Supreme Court of Wisconsin.

June 20, 1901.

Appeal from circuit court, Sheboygan county; Michael Kerwin, Judge.

Action by the state, on relation of the town of Holland and others, against Garrett Lammers and others, to determine the validity of incorporation of a village. From an order sustaining a demurrer to the complaint, the relators appeal. Affirmed.

Cassoday, C. J., dissenting.

Action to determine the validity of the incorporation of the village of Cedar Grove, Sheboygan county, Wis. The proceedings for incorporation were taken under sections 854-866, Rev. St. 1898, having been instituted in November, 1899. The territory attempted to be incorporated comprised a portion of the town of Holland, about two square miles, is situated entirely within Sheboygan county, and has a population numbering 317. The grounds upon which the action is based are that the petition for incorporation did not show that the territory sought to be incorporated contained a resident population of 400 persons to the square mile, and that the certificate of the inspectors who presided at the election to determine the question of incorporation does not show that the majority of the ballots given at the meeting, had thereon the word “Yes,” as required by section 865. The facts relating to this last contention are as follows: The certificate filed, among other things, states: “That, as such inspectors and clerk of such meeting or election, they caused a correct poll list of such qualified electors resident in such territory as voted or exercised the franchise at the election so held on that day to be made, and that the following named qualified electors, resident in such territory, voted by ballot having thereon the word ‘Yes' or the word ‘No.’ ” Then follows a list of ninety-one names. The certificate then continues: “That after the closing of the polls of said meeting or election at four o'clock in the afternoon, and upon the canvass of the ballots thrown or given at such meeting or election being made by the inspectors and clerk thereof, it was found, ascertained, and determined by said inspectors and clerk that there were eighty ballots given or thrown at such meeting or election, by qualified electors, resident in such territory; that a majority (forty-four) of the ballots so given or thrown at such meeting or election had thereon the word ‘Yes,’ and that thirty-six of the ballots, a minority of the ballots so given or thrown at such meeting or election, had thereon the word ‘No.’ ” The complaint set out the different steps taken in relation to the incorporation, and concluded with a prayer that the defendants be ousted from the offices they claimed to hold, and that the village be declared unlawful. The defendants united in a demurrer based upon the ground that the complaint did not state facts sufficient to constitute a cause of action, which was sustained. The relators bring this appeal.

Timlin, Glicksman & Conway, for appellants.

Simon Gillen, for respondents.

BARDEEN, J. (after stating the facts).

Two reasons are urged why the order appealed from should be reversed: (1) The territory sought to be incorporated does not contain the requisite population; (2) it does not appear that a majority of the ballots given at the meeting of the electors to determine the question of incorporation had thereon the word “Yes,” as required by section 865, Rev. St. 1898.

1. A determination of the first proposition calls for a construction of section 854, which reads as follows: “Any part of any town or towns, not less than one half square mile in area and not included in any village and all lying in the same county, which shall contain a resident population of not less than three hundred persons thereon, or any part of any town or towns, not less than one square mile in area and not included in any village and lying in two adjoining counties and which shall contain a resident population of at least four hundred persons to every square mile thereof, may, upon compliance with the conditions of this chapter, become incorporated as a village. * * *” The theory of relators' counsel is that a fair construction of the section requires that there should be at least 300 persons on each half square mile of territory incorporated, or that there must be at least 400 persons to every square mile thereof. To secure this construction, he insists that the words “and which shall contain a resident population of at least four hundred persons to every square mile thereof” constitute a modifying clause, and relate to and modify both disjunctive parts of the subject. He admits the general rule that a qualifying or limiting clause in a statute is to be referred to the next preceding antecedent, but he insists that to do so in this case would violate the evident purpose of the legislature. Black, Interp. Law, 150. We are not convinced that the situation demands any such forced and unnatural construction. The section as a whole seems plain and easy of interpretation. We will not attempt to defend the legislative policy therein expressed. It may be that it would have been wiser to have placed a limit upon the amount of territory that might be included in the proposed corporation, and to have enacted more definite limitations as to density of population therein; but we cannot say that the failure to do so violates any provision of the constitution, or renders the law so unreasonable as to be void. The constitution gives the power and makes it the duty of the legislature to provide for the incorporation of cities and villages, and to restrict their power in certain directions (section 3, art. 11), but it does not attempt to prescribe any limitations as to size or density of population. Regulations in that regard rest with the legislative branch of the government, and generally the courts must accept its will as manifested in statutes enacted covering the subject. A brief discussion of this subject may be found in Smith v. Sherry, 50 Wis. 210, 6 N. W. 561, which holds that the territory of such organizations must be contiguous. Turning now to the statute under consideration, we find that the legislature has said that any part of any town or towns lying in the same county, not less than one-half square mile in area, may be organized or become incorporated as a village, provided it shall contain not less than 300 persons thereon. If the territory lies in two adjoining counties, then it must be not less than one mile square in area, and contain a resident population of at least 400 persons to every square mile. The fact that there are no restrictions as to density of population as to territory wholly contained in one county, beyond the required 300, does not make the act void, although it may be sufficient to impeach the legislative policy in the minds of its critics. We are unable to find any support to the theory contended for in the history of this legislation, or by reference to section 861. That section merely requires the court to be satisfied that the population, “in number and in proportion to quantity of land therein required” by section 854, is found upon the territory sought to be incorporated. He so found in this court, and thus the demands of the law have been met.

2. Counsel for the relators assumes that, because the certificate of the inspectors recites that 91 votes were cast by the electors of the district, the subsequent finding that only 44 ballots had thereon the word “Yes” shows affirmatively that the majority required by section 865 were not in favor of incorporation. This, however, is not a fair construction of the certificate. The first statement is but a recitation of the number of voters who exercised the privilege of voting. That which follows is the finding and determination of the inspectors upon the canvass of the votes cast. They definitely find that 80 votes were cast, 44 of which were in favor of incorporation. In absence of allegation to the contrary, we must assume that the excess of votes over 80 were rejected for some valid reason. The law makes the regulations applicable to the election of town officers and the canvass of votes at a town meeting apply to such an election. If any of the ballots cast were illegal, as where several are folded together, it was their duty to reject them. The presumption is that they performed their duty according to law. So, when they found and determined that there were only 80 ballots cast, we must assume that the excess were illegal and properly rejected. The finding must prevail over the recitation of fact, and the integrity of the election be sustained, unless impeached upon some legal grounds. The majority of the ballots necessary under section 865 to determine the question of incorporation must be construed to mean the majority of the legal ballots cast on the proposition. Such was long ago established as the rule at the election of officers (State v. Tierney, 23 Wis. 430), and nothing is apparent in the section referred to to indicate that a different rule should be applied to the situation under consideration. The majority required is not of those who vote or attempt to vote, but a majority of the legal ballots cast, as shown by the canvass of the inspectors. The record showing such majority to be in favor of the project of incorporation, it must stand until overturned or impeached in a proper way. The order appealed from is affirmed.

(June 26, 1901.)

CASSODAY, C. J. (dissenting).

Section 854, Rev. St. 1898, is copied into the opinion of my Brother BARDEEN in this case. That section is a literal copy of section 7, c. 287, Laws 1897. It provides for the incorporation of two classes of villages; the first containing “not less than one-half square mile in area * * * and all lying in the same county,” and the second containing “not less than one square mile in area * * * and lying in two adjoining...