Town of Burke v. City of Madison

• Decision Date: 30 October 1962
• Citation: 117 N.W.2d 580,17 Wis.2d 623
• Parties: TOWN OF BURKE, a town and municipal corporation, et al., Appellants, v. CITY OF MADISON, a municipal corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 580

117 N.W.2d 580

17 Wis.2d 623

TOWN OF BURKE, a town and municipal corporation, et al., Appellants, v. CITY OF MADISON, a municipal corporation, Respondent.

Supreme Court of Wisconsin.

Oct. 30, 1962.

Robert Mortensen, Robert D. Martinson, Madison, for appellants.

Edwin C. Conrad, City Atty., Orr, Isaksen, Werner & Lathrop, special attorneys, Madison, for respondent.

CURRIE, Justice.

The two issues presented by this appeal are:

(1) Is the statutory procedure provided for contesting a referendum election the exclusive remedy for so doing thus precluding in this action defendant city's disputing the election result certified by the election inspectors?

(2) If the preceding question is answered in the affirmative, is the principle of exclusive remedy vitiated and rendered inapplicable to the facts of the instant case because the election inspectors failed to attach to their certification of the election result an affidavit verifying such certification?

Election Contest Statute Exclusive Remedy.

Sec. 66.021(5)(d), Stats., 1957, provides that an annexation referendum election 'shall be conducted as are other town elections in accordance with ch. 6 [Stats.] insofar as applicable.' Among the sections of ch. 6, Stats., 1957 applicable to the referendum election at issue is sec. 6.66(1) which provides in part as follows:

'Whenever any candidate, or any elector who voted upon any constitutional amendment or upon any proposition, voted for at any election, within 3 days after the last day of the meeting of the board of county canvassers, or in the case of an annual, regular, special, or referendum election in any city, town or village, within 3 days after the last meeting of the city, town or village board of canvassers, as the case may be, shall file with the county clerk or with the city, town or village clerk, as the case may be, a verified petition setting forth that he was a candidate for a specified office or that he voted upon any such constitutional amendment or proposition at said election, and that he is informed and believes that a mistake or fraud has been committed in specified precincts in the counting and return of the votes cast for the office for which he was a candidate, or upon the matter voted upon, or specifying any other defect, irregularity or illegality in the conduct of said election, said county, city, town or village board of canvassers, as the case may be, shall reconvene on the day following the filing of such petition and proceed to ascertain and determine the facts alleged in said petition and make correction accordingly and recount the ballots in every precinct specified in accordance therewith.' (Italics supplied.)

Sec. 6.66(3), Stats., 1957, provides that within five days after the board of canvassers makes its final determination in the contest proceeding as prescribed in sec. 6.66(1), Stats., 1957, any elector aggrieved thereby may appeal to the circuit court. In the instant case no elector residing in the affected territory filed any petition with the election inspectors, who constituted the board of canvassers, challenging the method of holding the election, the eligibility of any voter, or the count of the ballots by the canvassers.

Sec. 6.66, Stats., had its origin in ch. 328, Laws of 1911. As originally enacted, it provided a procedure whereby candidates for public office alone could contest the results of an election but had no application to referendum elections. It was not until the enactment of ch. 621, Laws of 1917, that the legislature made the contest procedure in sec. 6.66, Stats., applicable to referendum elections and available to electors voting therein. Therefore, the issue which now confronts this court for the first time, ¹ namely, whether the contest procedure in sec. 6.66, Stats., is the exclusive remedy for challenging a referendum election, could not have arisen before 1917. The attorney general, however, has rendered an opinion, which is directly in point, in 49 Op.Atty.Gen. 32 (1960), based upon the following facts: An elector challenged the election result of an annexation referendum pursuant to sec. 6.66(1), Stats., on the ground that two people who had voted therein were not qualified electors of the territory. The board of canvassers then met, conducted a hearing, and accepted proof by affidavit of the qualifications of the two challenged voters and of the way they voted. The canvassers then rejected these two votes and recertified the result of the election omitting these two votes. In his opinion the attorney general states (at pp. 34-35):

'Moreover, it appears to me that no appeal having been taken from the determination of the board of canvassers, as provided in sec. 6.66(3), its determination is very probably final and not subject to review or collateral attack in any other action. It will be observed that subsec. (4) above quoted provides that nothing in sec. 6.66 shall be construed to abrogate any right or remedy that any candidate may now have affecting the trying of title to office. This was no doubt intended to preserve the right of a candidate to a remedy by proceedings in the nature of quo warranto. See State ex rel. Graves v. Wiegand (1933), 212 Wis. 286, 249 N.W. 537.

'It is also true that formerly quo warranto or mandamus proceedings were available to test the outcome of a referendum State ex rel. Hopkins v. Olin * * * [(1868), 23 Wis. 309]. But it will be observed that in the Hopkins case the statute authorizing the referendum, ch. 148, Laws 1866, contained no provision for a recount or for an appeal from the canvass of the votes. Now the legislature has provided a remedy by recount and appeal and has expressly said that it does not interfere with other remedies of candidates, but has deliberately omitted any similar statement with reference to referenda. Therefore, the general rule appears to be applicable that 'where a specified method of review is prescribed by an act * * * conferring a new power, the method so prescribed is exclusive and if review is sought that method must be pursued.' Superior v. Committee on Water Pollution, (1953), 263 Wis. 23, 26-27, 56 N.W.2d 501, and cases cited. Since the time for appeal has expired, the finding of the board of canvassers upon the recount proceeding is probably final and binding.'

18 Am.Jur., Elections, p. 362, sec. 277 states that while courts are split on the question of whether statutory procedures for contesting elections are the exclusive remedy the majority rule is that they are. An exception to this rule is also stated therein, namely, that the use of quo warranto proceedings is not precluded to the people in their sovereign capacity for inquiring into usurpations of office. We shall discuss this quo warranto exception later in this opinion. To hold that the remedy provided by sec. 6.66, Stats., is exclusive is in accord with the general rule that where the law gives a new remedy this remedy is exclusive. Superior v. Committee on Water Pollution (1953), 263 Wis. 23, 26-27, 56 N.W.2d 501; Baxter v. Sleeman (1928), 196 Wis. 562, 564, 221 N.W. 382.

We consider the Idaho case of Harrison v. Board of County Com'rs. (1948), 68 Idaho 463, 198 P.2d 1013, to be directly in point on this question of exclusiveness of remedy. Three individual plaintiffs instituted suit for a decree adjudging void a referendum election involving special county bonds. The grounds of attack were alleged irregularities both in the proceedings antedating the election and also in the conduct of the election. With respect to the alleged irregularities in conducting the election, the court held that the action was not maintainable because Idaho had a statute which outlined a procedure for contesting such an election, which plaintiffs had not followed, and that this procedure was plaintiffs' exclusive remedy. The opinion distinguished an earlier Idaho case that had permitted a suit in equity to challenge a school bond election on the ground that the legislature at that time had not yet provided a statutory remedy for contesting such an election. The court in discussing this aspect of the case stated (68 Idaho, at p. 467, 198 P.2d, at p. 1015):

'So far as these grounds are concerned, appellants cannot maintain this action since such matters could have been brought up by direct contest of the election and the action to this extent partakes of a contest.' (Emphasis supplied.)

We deem this last-quoted statement by the Idaho court to be particularly appropriate with respect to defendant city's attempt in the instant case to go behind the result of the referendum election as certified and filed by the board of canvassers.

Defendant city cites the following cases, State ex rel. Field v. Saxton (1860), 11 Wis. *27; State ex rel. Gates v. Fetter (1860), 12 Wis. *566; State ex rel. Field v. Avery (1861), 14 Wis. *132; and State ex rel. Hopkins v. Olin (1868), 23 Wis. 309, wherein mandamus was held the proper remedy to test the validity of referendum elections held on the issue of removal of a county seat. Although mandamus is a legal remedy, its issuance is largely controlled by equitable principles. 34 Am.Jur., Mandamus, p. 829, sec. 33. Mandamus may not be maintained if some other plain, adequate, and complete remedy exists. Id., p. 835, sec. 42. Since 1917 such a remedy with respect to referendum elections has been provided by the election contest procedure specified in sec. 6.66, Stats. Therefore, as pointed out by the attorney general in 49 Op.Atty.Gen. 32 (1960), the abovecited cases have lost their efficacy as authorities that mandamus is a proper remedy for challenging the conduct of referendum elections.

Defendant city also relies upon the quo warranto cases brought in the name of the state to test the right of an occupant of public office to continue in such office. In those cases the courts hold that the official canvass of the election returns is not conclusive and admit evidence...