Citation Numbers: 60 Op. Att'y Gen. 294
Judges: ROBERT W. WARREN, Attorney General
Filed Date: 8/11/1971
Status: Precedential
Modified Date: 7/6/2016
THE HONORABLE, THE ASSEMBLY
Assembly Bill No. 64 (1971) if enacted would revamp Wisconsin's statutes pertaining to incorporation, annexation and consolidation. It creates a state, three-man boundary review board and establishes statutory standards against which all incorporations and annexations are measured. All annexations, *Page 295 other than municipally-owned territory, have been made subject to review and approval by the boundary review board prior to becoming effective.
As to certain annexations, mainly those based on petitions from electors and landowners of the area proposed to be annexed, referendum approval within such area would be required as under present law. Section 23 of the bill amends sec. 66.021 (5) (a), Stats., to retain referendum in certain cases, and sec. 66.021 (5) (g) which provides that "If the result of the referendum is against annexation, all previous proceedings shall be nullified" is not repealed.
No referendum within the area proposed to be annexed is provided for where the proposed annexation is initiated by the city or village under aboundary expansion program plan pursuant to proposed sec. 66.022, Stats., contained in section 33 of the bill, and which has been proven and approved. A two-thirds vote of the members-elect of the governing body of the municipality can affect such annexation following State Board approval.
Assembly Resolution No. 27 (1971) requests my opinion whether the legislature can constitutionally provide for annexation of territory without referendum for approval by the electors and landowners in the territory to be annexed.
It is my opinion that it can. There is no right of referendum guaranteed by either the United States or Wisconsin Constitutions.
In McQuillin, Municipal Corporations, Vol. 2, sec. 7.17, p. 344, it is stated:
"Unless otherwise provided by the state constitution, it is discretionary with the legislature to provide for a referendum on the question of the extension of corporate limits."
At Vol. 2, sec. 7.16, p. 343, of the same authority, it is stated:
"The constitutionality of laws providing for annexation without the consent of the inhabitants has in many cases been sustained." *Page 296
In School Dist. v. Callahan (1941),
"`Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be intrusted to them. . . . The state, therefore, at its pleasure, may . . . expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the state is supreme, and its legislative body, conforming its action to the state constitution, may do as it will, unrestrained by any provision of the constitution of the United States. Although the inhabitants and property owners may, by such changes, suffer inconvenience, and their property may be lessened in value by the burden of increased taxation, or for any other reason, they have no right, by contract or otherwise, in the unaltered or continued existence of the corporation or its powers, and there is nothing in the federal constitution which protects them from these injurious consequences. The power is in the state, and those who legislate for the state are alone responsible for any unjust or oppressive exercise of it.'"
This statement was again quoted with approval in State v. Mutter
(1964),
Wisconsin statutes have not always required or permitted referendum proceedings in connection with annexations. In Town of Wilson v. City ofSheboygan (1939),
In State ex rel. Madison v. Walsh (1945),
In Milwaukee v. Sewerage Comm. (1954),
"The legislature is prohibited by sec.
In Village of West Milwaukee v. Area Bd. of V. T. A. Ed. (1971),
I am of the opinion that a statute resulting from enactment of Assembly Bill No. 64 (1971) would be constitutional insofar as it establishes standards against which all annexations *Page 298 are measured and delegates to a state boundary review board and a city council or village board power to determine whether a proposed annexation under a boundary expansion plan shall become effective, without referendum for approval by electors and landowners in the territory to be annexed.
RWW:RJV
Hunter v. City of Pittsburgh , 28 S. Ct. 40 ( 1907 )
Village of West Milwaukee v. Area Board of Vocational, ... , 51 Wis. 2d 356 ( 1971 )
School Dist. v. Callahan , 237 Wis. 560 ( 1941 )
State Ex Rel. Madison v. Walsh , 247 Wis. 317 ( 1945 )
City of Milwaukee v. Sewerage Commission , 268 Wis. 342 ( 1954 )