Town of Burke v. City of Madison
| Decision Date | 10 January 1963 |
| Citation | 17 Wis.2d 623,118 N.W.2d 898 |
| Parties | TOWN OF BURKE, a town and municipal corporation, et al., Appellants, v. CITY OF MADISON, a municipal corporation, Respondent. |
| Court | Wisconsin Supreme Court |
Robert Mortensen, Madison, for appellants.
Edwin C. Conrad, City Atty., and Orr, Isaksen, Werner & Lathrop, Madison, Special Attys., for respondent.
Julian Bradbury, Madison, Amicus Curiae, for League of Wis. Municipalities.
(on motion for rehearing).
Respondent's brief in support of its motion for rehearing argues 13 propositions, most of which the court has already considered and decided adversely to respondent. In three instances, however, respondent has brought to our attention inaccuracies which we gladly correct.
(1) In stating the facts, we said the method of annexation followed was 'annexation by referendum' under sec. 66.021(2)(b), Stats.1957. In fact the method was 'direct annexation' under paragraph (a) of the same subsection. The referendum was conducted as provided in sub. (5).
(2) Respondent challenges our reference to a 'general rule that, where the law gives a new remedy, this remedy is exclusive.' A more apt statement is found in Baxter v. Sleeman: 1 '* * * where the law gives a new remedy to meet a new situation, the remedy provided by the law is exclusive * * *.' 2
Here, as pointed out in the opinion of the attorney general, cited in our opinion, there is language in the statute implying that the recount remedy was substituted for other remedies with respect to referenda.
(3) We stated that at the time of the adoption of the constitution there was no right to a jury trial in quo warranto trying title to an office. This assertion appears to have been erroneous. 3
The original opinion is modified so as to be in accord with the preceding statements. The result is unchanged. An annexation is subject to ascertainment of the choice of the majority. The announced results of this referendum showed annexation losing by a tie vote. It seems entirely reasonable to treat the canvassers' determination as conclusive unless timely challenged by a participating voter.
The motion for rehearing is denied, without costs.
2 See Morgan v. South Milwaukee Lake View Co. (1898), 100 Wis. 465, 466, 76 N.W. 354; State ex rel. Martin v. Juneau (1941), 238 Wis. 564, 568, 300 N.W. 187, and 3 Sutherland Statutory Construction (3d ed.), pp. 325-327, sec. 6802.
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