Opinion No. Oag 65-80, (1980)

ED JACKAMONIS, Speaker Wisconsin State Assembly Pursuant to sec. 165.015(1), Stats., the Assembly Committee on Organization requests my opinion on the following question: Where a town sanitary district consists of territory located wholly within a single town and the town board has appointed the commissioners for such district, is the town board required to call an election to elect commissioners pursuant to sec.60.305(1)(a), Stats., if a petition signed by at least twenty percent of the qualified electors of the district is filed? It is my opinion that the town board is not required to call such an election. *Page 246 A town sanitary district may be created so as to embrace only part of a town, the whole town or territory within more than one town. The town board having primary jurisdiction has substantial power as to whether a district shall be created, the territory to be included, which may include lands within one or more other towns, and over the method of selection of commissioners. SeeFort Howard Paper Co. v. Fox River Heights S. Dist.,250 Wis. 145, 26 N.W.2d 661 (1947); Fort Howard Paper Co. v. Town Board,266 Wis. 191, 63 N.W.2d 122 (1954); Fort Howard Paper Co. v.Ashwaubenon, 9 Wis.2d 329, 100 N.W.2d 915 (1960). Section 60.301, Stats., provides that the determination of the need for and territory to be included within a town sanitary district is within the jurisdiction, power, and authority of the town board. When the district encompasses more than one town, the town containing the largest assessed valuation of taxable property has jurisdiction. Section 60.305(1)(a), Stats., has grown to its present length through years of amendment, repeal, and re-creation which was intended, in part, to permit district commissioners to be elected rather than appointed. Section 60.305, Stats., was created by chs. 12, 522, Laws of 1935, and did not provide for the election of commissioners. As originally enacted the statute required that commissioners be appointed where the district embraced territory in more than one town. There was no provision for permissive or mandatory election. Where the territory of the district did not extend beyond the town boundaries, the members of the town board could designate themselves as "ex officio the commissioners," or could "appoint three . . . commissioners as provided in this section." There was no provision for permissive or mandatory election. Chapter 564, Laws of 1945, repealed and recreated sec. 60.305, Stats., to provide: When a town sanitary district shall have been established in territory lying within 2 or more towns, the town board of the town containing the largest assessed valuation of taxable property of the district therein, shall within 60 days after the effective date of this section appoint or provide for an election for the purpose of selecting 3 town sanitary district commissioners. *Page 247 Commissioners shall be appointed or elected for a term of 2 years and shall be reappointed by the town board or elected at the regular town election. If the commissioners have been appointed and a change to election of the commissioners be requested by a petition submitted to the town board of the town containing the largest assessed valuation of taxable property in the district, the petition to be signed by at least 10 per cent of the qualified electors of the district, the designated town board shall call a special election for the proposed election of commissioners within 60 days from the date of receipt of the petition. Any vacancy may be filled by appointment for the remainder of the unexpired term. The salary, if any, of the commissioners shall be fixed by the town board. Where all the territory of a town sanitary district lies within one town' the town board may by a two-thirds vote constitute itself as ex officio the commissioners of the town sanitary district. In the event the town board does not constitute itself as ex officio the commissioners of the town sanitary district, then such town shall at once provide for appointment or election of 3 sanitary commissioners as provided in this section. All sanitary district commissioners shall be property owners and residents of the sanitary district. The drafting record for 1945 Assembly Bill 598 which became ch. 564, Laws of 1945, contains no indication whether the Legislature intended to establish different procedures for election in single-town districts and multi-town districts. Under current statutes, commissioners in a multi-town district could be appointed or elected. But where they were appointed, the electors, by petition, signed by at least ten percent of the qualified electors of the district, could force the responsible town board to call a special election for election of the commissioners. In a single-town district, the town board had the option of action as "ex officio . . . commissioners." In such case no commissioners could be appointed, nor could an election be held or compelled. But where the town board did not elect to act as the commissioners they were required to "provide for appointment or election of 3 sanitary commissioners as providedin this section." The portion of the statute dealing with single-town districts is silent on the question of special election by petition. In my opinion the language "election . . . as provided in this section" refers to the procedure for an election if the town board in a *Page 248 single-town district does not itself act as an ex-officio commission and does not choose to appoint commissioners. Once commissioners are appointed, however, I do not believe that the language compels an election when a petition is lodged with the town board. Having explicitly provided for election by petition in multi-town districts the absence of such an explicit provision in the single-town district portion of the statute forces me to conclude that the Legislature probably did not intend such a result in single-town districts. This is an issue which is not entirely free from doubt. The decision here will allow the Legislature an opportunity to consider this question which may have been overlooked. BCL:DJH