Schaefer v. Village Bd. of Village of Potosi, Grant County
| Decision Date | 20 May 1993 |
| Docket Number | No. 92-2536,92-2536 |
| Citation | 501 N.W.2d 901,177 Wis.2d 287 |
| Parties | Cyril SCHAEFER, and Charles Ragatz, Plaintiffs-Respondents, v. VILLAGE BOARD OF the VILLAGE OF POTOSI, GRANT COUNTY, Wisconsin, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.
This appeal involves an attempt by electors of the Village of Potosi to initiate legislation under sec. 9.20, Stats., to control the installation of sidewalks and the provision of parking on a portion of State Trunk Highway (STH) 133 in the village. The village board appeals from a circuit court order making absolute a writ of mandamus directing the board to either adopt the initiated resolution or submit it to the electors at the next general election.
The village board claims that the initiated resolution deals with administrative matters reserved by statute to the village board which are not a proper subject of direct legislation. The board also argues that the resolution was not properly initiated because it sought to rescind or repeal existing legislation. We agree and reverse the order.
The facts are stipulated and the parties agree that application of law to the facts presents a question of law which we decide independently of the trial court's decision. Kania v. Airborne Freight Corp., 99 Wis.2d 746, 758-59, 300 N.W.2d 63, 68 (1981). The stipulated facts include the following. The Wisconsin Department of Transportation (DOT) is scheduled to improve STH 133 in the village. The village board, acting under sec. 61.36, Stats., voted to have DOT install sidewalks along portions of the highway and widen the highway to allow on-street parking on other portions. Respondents and others initiated the following resolution and requested that the village board adopt the resolution without alteration, or submit it to the electors for their vote, in accordance with sec. 9.20, Stats.:
1. The prior decision of the Village Board of the Village of Potosi to install sidewalk on East Street from the east end of Inlot 140 [e]ast to Slazing Road in the Village of Potosi, Grant County, Wisconsin, is hereby rescinded.
2. No sidewalk shall be installed or reinstalled on either side of East Street from east end of Inlot 140 [e]ast to Slazing Road in the Village of Potosi, Grant County, Wisconsin[.]
3. Parking shall be allowed on both sides of Main Street from the west side of Inlot 122 south to the open flume at the Masonic Lodge and on South Main Street from the south end of the open flume, to 4th Street.
4. Parking shall be allowed on the north side of Main Street from a point 1,300 feet south of 4th Street to Mineral Street.
5. Parking shall not be allowed on either side of the street from the west side of Inlot 122 east to Slazing Road.
The village board refused to adopt the resolution or submit it to the electors because the board concluded that matters dealt with in the initiated resolution were not proper subjects of direct legislation under sec. 9.20, Stats. The respondents began this action against the village board for mandamus relief and, on September 15, 1992, the circuit court issued an order requiring the board to either adopt the initiated resolution or submit it to the electors in accordance with sec. 9.20, Stats. After the board appealed, we denied the board's motion for a stay of the trial court's order and on November 3, 1992, the resolution was approved by the electors voting in the general election.
The circuit court concluded that the proposed resolution addressed a new project which required substantial taxation to pay the costs thereof. Therefore, the court reasoned that the resolution proposed legislative action.
It is true that the improvement of STH 133 is a new project. But the village board has already dealt with the subject matter of the proposed resolution. The resolution would reverse decisions already made by the village board. Section 1 of the initiated resolution rescinds the decision of the board to install sidewalks along a portion of STH 133. Section 2 makes the decision not to install such sidewalks. Sections 3, 4 and 5 do not propose to repeal the board's decision to authorize DOT to widen STH 133, but propose to rescind the board's decision as to on-street parking.
The village board contends that the proposed resolution may not be initiated under sec. 9.20, Stats., for three reasons. First, the resolution deals with administrative action rather than legislative action. Second, it infringes on the authority delegated to the...
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