#### The State ex rel. Hanlon, Respondent, vs. Russell, President, and others, Appellants.

*March 16*

April *5, 1905.*

*Municipal corporations: Lighting franchise: Submission to electors: Petition.*

Under sec. 959 — 52, Stats. 1898 (providing that applications for certain franchises shall he submitted to the electors of the city or village if such-submission is requested by a petition “signed by at least twenty per cent, of the electors of such city or village, as appears by the poll list of the last general election”), the petition must be signed by twenty per cent, of the electors whose names appear on such poll list.

Appeal from a judgment of the circuit court for Milwaukee county: Waeresc D. Taebaht, Circuit Judge.

*Reversedl.*

This is an action of *mandamus,*brought on the relation of a taxpayer of the village of West Allis against the village officers to compel the submission of a certain gas franchise to the vote of the people, under sec. 959 — 52, Stats. 1898. There was no material dispute as to the facts, which were, in substance, as follows:

On the 21st of December, 1903, the West Allis Gas Company, a corporation, applied to the village board of West Allis for a franchise to lay and operate gas mains in the streets of the village, and submitted a copy of a proposed ordinance granting such franchise. The application and the proposed ordinance were prablished in the official newspaper of the village, the first publication being in the paper dated January 2, 1904, but in fact issued on the evening of December 31, 1903; and the second publication being in the issue dated January 9, 1904, but appearing January 8, 1904. On January 15, 1904, a petition, signed by the relator and 163 other electors of the village of West Allis, was filed with the village clerk, demanding that the proposed *549ordinance be submitted to a vote of tbe people. Tbe village board at tbeir nest meeting1, held on January 18, 1904, refused to submit tbe ordinance to a vote of tbe people, whereupon this action was brought. It further appeared that at the general election held in November, 1902, 340 votes in all were cast in the village of West Allis, as shown by'the poll list of that election; that said petition for referendum was not signed by twenty per cent, of the voters whose names appeared upon said poll list, but that said petition was signed by 164 electors, which was greatly more than twenty per cent, of the number of names upon the poll list.

Upon these facts the court made findings and entered judgment directing the issuance' of a peremptory writ of *mandamus,*and the defendants appeal.

Eor the appellants there was a brief by *Miller, Noyes & Miller,*and oral argument by *G. H. Noyes.*

Eor the respondent there was a brief by *Bloodgood, Kemper & Bloodgood,*attorneys, and *J achson B. Kemper,*of counsel, and oral argument by *Jachson B. Kemper.*

■WiNsnow, J.

The statute (sec. 959 — 52, Stats. 1898) requires that the petition for referendum shall be signed by “at least twenty per cent, of the electors of such city or village, as appears by the poll list of the last general.election.” It is conceded that, if this means that the petition shall be signed by twenty per cent, of the electors whose names appear on the poll list, then the petition in this case was not sufficient, but, if it means twenty per cent, of the number of electors upon the last poll list, then the petition was sufficient. This is the only question which we find it necessary to consider. Little or no aid can be obtained from authorities, although two cases in this court, arising under somewhat similar statutes, are cited, viz., *La Londe v. Barron Co.*80 Wis. 380, 49 N. W. 960, and *Bush v. State ex rel, Boyle,*100 Wis. 549, 76 N. W. 606. It is simply a question of *550construction of tbe language used. Had tbe statute said twenty per cent, of tbe electors appearing by tbe poll list, we suppose there would be little or no contention as to tbe meaning. All would construe it as meaning twenty per cent, of tbe very electors appearing on that list. Tbe words used are “twenty per cent, of tbe electors ... as appears by tbe poll list.” We think tbis must be construed in the same way. Tbe legislative idea evidently was to provide a definite and certain means of ascertaining whether tbe required number of petitioners bad signed. By providing that tbe petition should be signed by twenty per cent, of tbe persons whose names appeared on tbe poll list all difficulty was removed. Inspection of tbe petition, inspection of tbe poll list, and enumeration of tbe names common to both, settled tbe question. Tbis seems a very reasonable method, and it is a method frequently adopted. Tbe presumption is that there will be little change in tbe body of tbe electorate between two general elections.

*By the Court.*— Judgment reversed, and action remanded with directions to deny tbe writ and dismiss tbe action.