Attorney General of Wisconsin — Opinion
January 21, 1974.
Towns; Revisor of Statutes; For purposes of sec. 70.67 (2), Stats., the town board is the governing body of the town.
ROBERT W. WARREN, Attorney General
JAMES J. BURKE Revisor of Statutes
Pursuant to sec. 35.20, Stats., the Revisor of Statutes supervises an edition designated “Wisconsin Town Law Forms” concerning suitable forms for use in the administration of certain laws.
The suggested form provided for use with sec. 70.67 (2), Stats., provides:
“70.67 (2) Exemption from bond.
“The town meeting of the town of ______, under s. 70.67
(2) of the statutes, hereby ordains that the treasurer of said town is exempted from giving the bond specified in said section; and
“That said town hereby obligates itself to pay (in case its treasurer fails so to do) all state and county taxes which he is required to pay to the county treasurer.
“Town of ________, County of
[Signature of town clerk]”“I, _______ _______, as clerk of said town, do hereby certify that the foregoing is a true, correct and complete copy of an ordinance adopted at the annual town meeting held on the _____ day of ________, 19__
You inquire whether the form should refer to the “town board” rather than the “town meeting” since sec. 70.67 (2), Stats., refers to the “governing body” of the municipality.
Section 70.67 (1) and (2), Stats., provides in material part:
“70.67 Municipal treasurer’s bond; substitute for. (1) The treasurer of each town, city or village shall, unless exempted under subsection (2), execute and deliver to the county treasurer a bond, with sureties, to be approved, in case of a town
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treasurer, by the chairman of the town, and in case of a city or village treasurer by the county treasurer, conditioned for the faithful performance of the duties of his office and that he will account for and pay over according to law all taxes of any kind which shall come into his hands and which he is required to pay to the county treasurer . . . .
“(2) The treasurer of any municipality shall not be required to give such bond if the governing body thereof shall by ordinance obligate such municipality to pay, in case the treasurer thereof shall fail so to do, all taxes of any kind required by law to be paid by such treasurer to the county treasurer. Such governing body is authorized to so obligate such municipality. If the governing body of the municipality has adopted an ordinance as specified in this subsection, it may demand from its treasurer, in addition to the official bond required of all municipal treasurers, a fidelity or surety bond in an amount and upon such terms as may be determined by the governing body. Such bond shall run to the town or village board or the city council, as the case may be, and shall be delivered to the clerk of the municipality. A certified copy of such ordinance filed with the county treasurer shall be accepted by him in lieu of the bond required by subsection (1). Such ordinance shall remain in effect until a certified copy of its repeal shall be filed with the county clerk and the county treasurer. The official bond executed pursuant to section 19.01, required of municipal treasurers, shall extend to and include the liability incurred by any town, city or village whose governing board shall adopt and certify to the county treasurer an ordinance in accordance with this subsection.”
I am of the opinion that the form should refer to the town board as that is the day-to-day governing body, whereas the town meeting is essentially a legislative body.
This conclusion is supported by an analysis of the statute and by references to the definition of governing body in other statutes relating to towns. I find no definition of governing body in ch. 70 of the statutes. It is noted that where cities or villages are concerned, sec. 70.67 (2), Stats., in effect permits the city council or village board to exempt the treasurer from the bond requirements of sec.
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70.67 (1) without referral to the electors. Towns have only those powers which are granted by statute or which are necessarily implied. These limited governing powers are divided between the town meeting, which consists of all electors in the town, and the town board. In general the town meeting exercises essentially legislative powers, within limits delegated by the legislature. The town board exercises administrative and legislative powers as delegated by the legislature and, in some cases, by the town meeting.
In Town of Akan v. Kanable (1963), 18 Wis.2d 615, 119 N.W.2d 419, it was stated that the bond under sec. 70.67 (1) runs to the county treasurer but that under sub. (2) the town as a corporate body may by ordinance guarantee payment, but that under this method the town has no security from defalcations of its treasurer. However, sub. (2) also authorizes an additional bond to run to the town if such town passes an ordinance obligating the town for its treasurer’s defalcations. The case does not, however, determine whether the town meeting or the town board must pass such ordinance.
Section 60.48, Stats., provides that a town treasurer must give bond for the whole amount of money estimated to come into his hands during his term. The section was amended in 1971 to provide an exception that in towns where the town board is authorized to exercise village powers, the amount of such bond shall be set by the town board. I consider it noteworthy that the legislature did not provide that the amount of the bond should be set by the town meeting. It can, therefore, be argued by analogy that where the legislature provides for an exception to the bond requirement in sec. 70.67, the town board, at least in towns with village powers, is the governing body referred to. The town board also acts as the board of audit and has a duty to examine and audit the accounts of each town officer. I am of the opinion that the legislature intended that the town board have authority under sec. 70.67 (2) whether or not it has been authorized to exercise village powers.
With respect to publication of legal notices, sec. 985.01 (5), Stats., provides that:
“. . . `governing body’ [has] the meaning in s. 345.05
(1) (b) with reference to such municipality.”
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Section 345.05 (1) (b), Stats., relating to civil and criminal liability, defines “governing body” as “the town board with reference to towns.”
With respect to elections, sec. 5.02 (9) (b) provides that “governing body” means the “town board.”
With respect to navigable waters, sec. 30.01 (2) provides that “governing body” of a town means “the town board.”
With respect to retirement benefits, sec. 41.02 (29) provides that “governing body” means “the town board in towns.”
With respect to promotion of industry, sec. 66.521 (2) (d) provides:
“(d) `Governing body’ means the board, council or other body in which the legislative powers of the municipality are vested.”
With respect to special improvement bonds, sec. 66.54 (1) (b) provides:
“(b) `Governing body’ means the body or board vested by statute with the power to levy special assessments for public improvements.”
With respect to regional planning commissions, sec. 66.945 (1) provides “governing body” means “the town, village or county board or the legislative body of a city.”
With respect to municipal borrowing, sec. 67.01 (3) provides in part:
“(3) `Governing body’ includes a town or county board, the legislative body of a city or village . . .”
With respect to municipal power districts, sec. 198.01 (3) defines “governing body” to mean “in the case of any town or village, the town or village board . . .”
RWW:RJV
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