BEILFUSS, Justice.
The trial judge, Judge Elmer D. Good-land, filed a comprehensive, scholarly and helpful memorandum opinion. He concluded that annexation and consolidation were separate and distinct statutory proceedures intended to apply to dissimilar factual situations and that annexation was not intended by the legislature to encompass consolidation.
The dispute before us arises by virtue of conflicting interpretations of the consolidation and annexation statutes.
The legislature in its 1959 session made substantial changes in the statutory law governing the overall problem of municipal incorporation and urban expansion. A dominate change was a legislative recognition that many localities of the state were experiencing a substantial urban growth and that the existing legislation permitted haphazard, unrealistic and competitive expansion without regard for present and probable future development in the best overall public interest. The consolidation statute, sec. 66.02, was amended to provide for a determination by the director of the planning function of the department of resource development as to whether the proposed consolidation would be in the public interest, subject to review by the circuit court. Sec. 66.021, Stats., the principal annexation statute, was amended to provide for substantially the same public interest determinations.
The legislature, in the same 1959 session, enacted sec. 66.024, Stats., as a new alternative annexation statute without a public interest determination requirement. An attempt was made to amend the section to provide for a similar public interest determination; this proposed amendment passed one house of the legislature and lost in the other and therefore did not become a part of sec. 66.024, Stats.
The petition for annexation in this proceeding is under sec. 66.024, Stats.
The pertinent parts of the consolidation statute and the alternative annexation statutes are as follows:
Sec. 66.02 provides:
'Consolidation. Any town, village or city may be consolidated with a contiguous town, village or city, by ordinance, passed by a two-thirds vote of all the members of each board or council, fixing the terms of the consolidation and ratified by the electors at a referendum held in each municipality. The ballots shall bear the words, 'for consolidation,' and 'against consolidation,'
and if a majority of the votes cast thereon in each municipality shall be for consolidation, the ordinances shall then be in effect and have the force of a contract. The ordinance and the result of the referendum shall be certified as provided in s. 66.018(5); if a town the certification shall be preserved as provided in ss. 60.05 and 66.018(5), respectively. Consolidation shall not affect the pre-existing rights or liabilities of any municipality and actions thereon may be commenced or completed as though no consolidation had been effected. Any consolidation ordinance proposing the consolidation of a town and another municipality shall, within 10 days after its adoption and prior to its submission to the voters for ratification at a referendum, be submitted to the circuit court and director of the planning function in the department of resource development for a determination whether such proposed consolidation is in the public interest. The circuit court shall determine whether the proposed ordinance meets the formal requirements of this section and shall then refer the matter to the director of the planning function in the department of resource development, who shall find as prescribed in s. 66.014 whether the proposed consolidation is in the public interest in accordance with the standards in s. 66.016. The director's findings shall have the same status as incorporation findings under ss. 66.014 to 66.019.'
Sec. 66.024 provides:
'Annexation by referendum; court order. As a complete alternative to any other annexation procedure, unincorporated territory which contains electors and is contiguous to a city or village may be annexed thereto in the manner hereafter provided. The definitions in s. 66.021(1) shall apply to this section.
'(1) Procedure for Annexation. (a) The governing body of the city or village to which it is proposed to annex territory shall, by resolution adopted by two-thirds of the members-elect, declare its intention to apply to the circuit court for an order for an annexation referendum, and shall publish the resolution once in a newspaper having general circulation in the area proposed to be annexed, and shall cause to be made a scale map of such territory showing it in relation to the annexing city or village. The resolution shall contain a description of the territory to be affected, sufficiently accurate to determine its location, the name of the municipalities directly affected and the name and post-office address of the municipal official causing the resolution to be published. The person who causes the resolution to be published shall serve a copy of the resolution together with the scale map upon the clerk of the town or towns from which the territory is to be detached within 5 days of the date of publication of the resolution. Such service may be either by personal service or by registered mail and if by registered mail an affidavit must be on file with the annexing body indicating the date said resolution was mailed. The annexation shall be deemed commenced upon publication of the resolution.
'(b) Application to the circuit court shall be by petition subscribed by the officers designated by the governing body, and shall have attached as a part thereof: The scale map, a certified copy of the resolution of the governing body and an affidavit of the publication and filing required under par. (a). Such petition shall be filed in the circuit court not less than 30 days but no more than 45 days after the publication of the notice of intention.
'(2) Protest to Court by Electors; Hearing. (a) If prior to the date set for a hearing upon such application
there is filed with the court a petition signed by a majority of the electors residing in the territory or the owners of more than one-half of the real property in assessed value in such territory, protesting against the annexation of such territory, the court shall deny the application for an annexation referendum.
'(b) If a petition protesting the annexation is found insufficient the court shall proceed to hear all parties interested for or against the application. The court may in its discretion adjourn such hearing from time to time, direct a survey to be made and refer any question for examination and report thereon. Any town whose territory is involved in the proposed annexation shall, upon application, be a party and entitled to be heard on any matter pertaining thereto.
'* * *
'(4) Referendum Election; When Ordered and Held. (a) If the court, after such hearing, is satisfied as to the correctness of the description of the territory or any survey and that the provisions of this section have been complied with, it shall make an order so declaring and shall direct a referendum election within the territory which shall be described in the order, on the question, whether such area should be annexed. Such order shall direct 3 electors named therein residing in thw town in which the territory proposed to be annexed lies, to perform the duties of inspectors of election.'
The trial court concluded that there was a significant statutory distinction between consolidation and annexation as recognized by the court in several cases 1 and that the merging of territory as contemplated in this proceeding was not annexation but consolidation, and invalid because not in conformity with the consolidation statute.
We recognize that Elmwood Park and Mt. Pleasant could have proceeded under the consolidation statute (sec. 66.02) in their attempt to merge into one municipality. Because consolidation procedure was available to them it does not follow that the alternative, annexation, was not proper for the same purpose.
The introductory portion of sec. 66.024 is most unequivocal--'As a complete alternative to any other annexation procedure, unincorporated territory which contains electors and is contiguous to a city or village may be annexed thereto in the manner hereafter provided.' (Emphasis added.)
The town of Mt. Pleasant is unincorporated; it does contain electors and is contiguous to the village of Elmwood Park. The statute contains no limitation as to size, nor does it prohibit annexation of an entire unincorporated area. We conclude that Elmwood Park could annex the entire town of Mt. Pleasant under sec. 66.024, Stats., if the proceeding otherwise complied with the statute and the case law dealing with...
