CANE, P. J.
The City of Appleton appeals a judgment ordering it to submit a proposed charter ordinance to a vote of the electorate.
The city argues that the trial court improperly interpreted sec. 66.01, Stats.,
regarding the exercise of home rule powers,
and sec. 9.20, Stats.,
regarding the method for direct legislation. Because we conclude that the trial court
properly ordered the proposed charter ordinance be submitted to a vote of the electorate, we affirm.
The proposed charter amendment was submitted to the common council and is a form of direct legislation and municipal home rule.
See
sec. 66.01, Stats. It would require that the city provide emergency medical services through its fire department.
This proposed or
dinance was a reaction to a common council decision to discontinue the fire department's emergency medical services and, instead, to rely on private organizations for these services. The common council took no action on the proposed charter ordinance and the trial court, by writ of mandamus, ordered it to submit the proposal to a vote of the electorate.
Mandamus is an extraordinary writ that may be issued in the sound discretion of the trial court.
Rawhouser v. Cooperative Educational Service Agency No. 4,
75 Wis. 2d 52, 61, 248 N.W.2d 442, 447 (1977). A trial court abuses its discretion when it does not exercise its discretion or exercises it based on an error of law or findings that are clearly erroneous.
Gould v. Gould,
116 Wis. 2d 493, 498, 342 N.W.2d 426, 429 (1984). A writ of mandamus is generally controlled by equitable principles and may be issued when no other remedy exists taking into account the rights of the public and other parties.
Rawhouser,
75 Wis. 2d at 61, 248 N.W.2d at 447. It may be issued only when the petitioner has a specific legal right to the action he seeks to compel.
State ex rel. Althouse v. City of Madison,
79 Wis. 2d 97, 106, 255 N.W.2d 449, 453 (1977).
Section 66.01 provides the manner for exercising home rule powers set forth in art. XI, § 3, of the Wisconsin Constitution.
A municipality
may exercise its home rule powers as a method of determining its local affairs. Section 66.01(1), Stats.;
see also State ex rel. Sleeman v. Baxter,
195 Wis. 437, 447, 219 N.W. 858, 862
(1928). A charter ordinance is any ordinance that "enacts, amends or repeals the whole or any part of [a municipal] charter" or that deems state laws relating to purely local concerns to be inapplicable. Section 66.01(2)(a), Stats. A charter ordinance may be initiated in the same manner that any direct legislation is initiated as provided in sec. 9.20 (1) to (6). Section 66.01(6), Stats.
A régular or noncharter ordinance initiated under sec. 9.20 must be legislative in character and within the substantive limits binding the governmental body and cannot be used to repeal or amend existing legislation.
Althouse,
79 Wis. 2d at 108, 255 N.W.2d at 454. The trial court concluded, however, that the statutory and judicial limitations upon direct legislation under sec. 9.20 do not apply to direct legislation under sec. 66.01. The city argues that these limitations apply to both forms of direct legislation and that the proposed charter ordinance is void because it is administrative in nature and repeals existing legislation.
Because interpretation of a statute is a question of law, we pay no deference to the trial court's decision.
Hainz v. Shopko Stores, Inc.,
121 Wis. 2d 168, 172, 359 N.W.2d 397, 400 (Ct. App. 1984). Consequently, we will interpret secs. 9.20 and 66.01
ab initio. Id.
Sections 66.01 and 9.20 provide the machinery and the method for the exercise of home rule powers.
State
ex rel. Coyle v. Richter,
203 Wis. 595, 599, 234 N.W. 909, 910 (1931). We agree with the trial court's conclusion that the sec. 66.01 reference to sec. 9.20 is to its procedures regarding direct legislation and does not impose the limitations emanating from this statute on the electorate's exercise of home rule powers. We disagree, however, with its conclusion that the people's exercise of power under sec. 66.01 is free from limitations.
We conclude that a charter ordinance must be legislative in character before it can be validly initiated by direct legislation. The powers of initiative and referendum are reserved to the people of Wisconsin.
Althouse,
79 Wis. 2d at 115, 255 N.W.2d at 457 (quoting
Blotter v. Farrell,
270 P.2d 481, 484 (Cal. 1954)). "The power of initiative or referendum usually is restricted to legislative ordinances, resolutions or measures, and is not extended to executive or administrative action."
Heider v. City of Wauwatosa,
37 Wis. 2d 466, 474, 155 N.W.2d 17, 21 (1967) (quoting 5 E. McQuillin, The Law of Municipal Corporations § 16.55 (3d ed.)).
The legislative-administrative distinction is made because the conduct of government would be seriously hampered if initiative and referendum propositions were used to compel or bar administrative acts by elected officials.
See
5 E. McQuillin,
supra.
The people have retained the power to use the initiative or referendum process to deal only with matters that are legislative in nature. This limitation is not dependent on the type of legislation involved in the initiative or referendum process but, rather, arises out of the nature of the powers reserved to the people. The nature of the power reserved to the people is limited to legislative matters, and the people are exercising the same reserved power
regardless whether charter or noncharter legislation is involved. Consequently, this legislative limitation equally applies to a charter or noncharter initiative.
See Glass v. Smith,
244 S.W.2d 645, 648-49 (Tex. 1952);
Jones v.
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CANE, P. J.
The City of Appleton appeals a judgment ordering it to submit a proposed charter ordinance to a vote of the electorate.
The city argues that the trial court improperly interpreted sec. 66.01, Stats.,
regarding the exercise of home rule powers,
and sec. 9.20, Stats.,
regarding the method for direct legislation. Because we conclude that the trial court
properly ordered the proposed charter ordinance be submitted to a vote of the electorate, we affirm.
The proposed charter amendment was submitted to the common council and is a form of direct legislation and municipal home rule.
See
sec. 66.01, Stats. It would require that the city provide emergency medical services through its fire department.
This proposed or
dinance was a reaction to a common council decision to discontinue the fire department's emergency medical services and, instead, to rely on private organizations for these services. The common council took no action on the proposed charter ordinance and the trial court, by writ of mandamus, ordered it to submit the proposal to a vote of the electorate.
Mandamus is an extraordinary writ that may be issued in the sound discretion of the trial court.
Rawhouser v. Cooperative Educational Service Agency No. 4,
75 Wis. 2d 52, 61, 248 N.W.2d 442, 447 (1977). A trial court abuses its discretion when it does not exercise its discretion or exercises it based on an error of law or findings that are clearly erroneous.
Gould v. Gould,
116 Wis. 2d 493, 498, 342 N.W.2d 426, 429 (1984). A writ of mandamus is generally controlled by equitable principles and may be issued when no other remedy exists taking into account the rights of the public and other parties.
Rawhouser,
75 Wis. 2d at 61, 248 N.W.2d at 447. It may be issued only when the petitioner has a specific legal right to the action he seeks to compel.
State ex rel. Althouse v. City of Madison,
79 Wis. 2d 97, 106, 255 N.W.2d 449, 453 (1977).
Section 66.01 provides the manner for exercising home rule powers set forth in art. XI, § 3, of the Wisconsin Constitution.
A municipality
may exercise its home rule powers as a method of determining its local affairs. Section 66.01(1), Stats.;
see also State ex rel. Sleeman v. Baxter,
195 Wis. 437, 447, 219 N.W. 858, 862
(1928). A charter ordinance is any ordinance that "enacts, amends or repeals the whole or any part of [a municipal] charter" or that deems state laws relating to purely local concerns to be inapplicable. Section 66.01(2)(a), Stats. A charter ordinance may be initiated in the same manner that any direct legislation is initiated as provided in sec. 9.20 (1) to (6). Section 66.01(6), Stats.
A régular or noncharter ordinance initiated under sec. 9.20 must be legislative in character and within the substantive limits binding the governmental body and cannot be used to repeal or amend existing legislation.
Althouse,
79 Wis. 2d at 108, 255 N.W.2d at 454. The trial court concluded, however, that the statutory and judicial limitations upon direct legislation under sec. 9.20 do not apply to direct legislation under sec. 66.01. The city argues that these limitations apply to both forms of direct legislation and that the proposed charter ordinance is void because it is administrative in nature and repeals existing legislation.
Because interpretation of a statute is a question of law, we pay no deference to the trial court's decision.
Hainz v. Shopko Stores, Inc.,
121 Wis. 2d 168, 172, 359 N.W.2d 397, 400 (Ct. App. 1984). Consequently, we will interpret secs. 9.20 and 66.01
ab initio. Id.
Sections 66.01 and 9.20 provide the machinery and the method for the exercise of home rule powers.
State
ex rel. Coyle v. Richter,
203 Wis. 595, 599, 234 N.W. 909, 910 (1931). We agree with the trial court's conclusion that the sec. 66.01 reference to sec. 9.20 is to its procedures regarding direct legislation and does not impose the limitations emanating from this statute on the electorate's exercise of home rule powers. We disagree, however, with its conclusion that the people's exercise of power under sec. 66.01 is free from limitations.
We conclude that a charter ordinance must be legislative in character before it can be validly initiated by direct legislation. The powers of initiative and referendum are reserved to the people of Wisconsin.
Althouse,
79 Wis. 2d at 115, 255 N.W.2d at 457 (quoting
Blotter v. Farrell,
270 P.2d 481, 484 (Cal. 1954)). "The power of initiative or referendum usually is restricted to legislative ordinances, resolutions or measures, and is not extended to executive or administrative action."
Heider v. City of Wauwatosa,
37 Wis. 2d 466, 474, 155 N.W.2d 17, 21 (1967) (quoting 5 E. McQuillin, The Law of Municipal Corporations § 16.55 (3d ed.)).
The legislative-administrative distinction is made because the conduct of government would be seriously hampered if initiative and referendum propositions were used to compel or bar administrative acts by elected officials.
See
5 E. McQuillin,
supra.
The people have retained the power to use the initiative or referendum process to deal only with matters that are legislative in nature. This limitation is not dependent on the type of legislation involved in the initiative or referendum process but, rather, arises out of the nature of the powers reserved to the people. The nature of the power reserved to the people is limited to legislative matters, and the people are exercising the same reserved power
regardless whether charter or noncharter legislation is involved. Consequently, this legislative limitation equally applies to a charter or noncharter initiative.
See Glass v. Smith,
244 S.W.2d 645, 648-49 (Tex. 1952);
Jones v. International Association of Firefighters,
601 S.W.2d 454, 455-56 (Tex. Ct. App. 1980).
The proposed charter ordinance in this case is legislative in character.
[A]ction[s] relating to subjects of permanent and general character are usually regarded as legislative, and those providing for subjects of temporary and special character are regarded as administrative. . . . An ordinance which shows an intent to form a permanent rule of government until repealed is one of permanent operation.. . . Obviously, details which are essentially of a fluctuating sort, due to economic or other conditions, cannot be set up in and by an ordinance to be submitted to vote of the people. . . .
"The test of what is a legislative [proposition] and what is an administrative proposition, with respect to the initiative or referendum, has further been said to be whether the proposition is one to make new law or to execute law already in existence. . . . 'The power to be exercised is legislative in its nature if it prescribes a new policy or plan;
whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it.'"
Heider,
37 Wis. 2d at 474, 155 N.W.2d at 21 (quoting 5 E. McQuillin,
supra).
Here, the proposed charter ordinance establishes a permanent rule regarding emergency medical services. It also does not pursue a preexisting plan established by the legislative body. The common council decided to stop providing emergency medical services through the fire department. Instead, all emergencies would be routed to privately licensed ambulance services. The proposed charter ordinance prescribes a new policy that these services again be provided through the fire department.
The city argues, however, that the proposal encroaches into personnel matters that are generally characterized as administrative.
See State ex rel. Becker v. Common Council,
101 Wis. 2d 680, 685-90, 305 N.W.2d 178, 181-84 (Ct. App. 1981). In
Becker,
a noncharter resolution proposed under sec. 9.20 called for the resignation of the city's police chief. The court, concluding that the resolution was administrative in nature, reasoned that the resolution did not establish a rule for all future police chiefs, but rather was restricted to a specific individual.
Becker
is consistent with our decision. Here, the proposed charter ordinance does not attempt to specify named individuals to provide the emergency medical services. In addition, it does not attempt to establish hours, wages, or other employment conditions for those employees hired to provide the services. Consequently, we conclude that the proposed charter ordinance does
not sufficiently encroach into personnel matters as to make it administrative.
The limitation regarding the repeal or amendment of existing legislation does not apply to a charter ordinance initiative. Our review is controlled by the notion that in order to protect the people of this state in the exercise of their reserved legislative power, statutory or charter provisions dealing with the referendum should be afforded liberal construction.
Althouse,
79 Wis. 2d at 115, 255 N.W.2d at 457 (quoting
Blotter,
270 P.2d at 484). The legislature clearly intended charter ordinances to control over any prior or subsequent act of the legislative body. Section 66.01(8), Stats., provides:
Every charter, charter amendment or charter ordinance enacted or approved by a vote of the electors shall control and prevail over any prior or subsequent act of the legislative body of the city or village. . . .
The city concedes that a proposed charter ordinance has been used to repeal existing legislation.
See Thompson v. Village of Whitefish Bay,
257 Wis. 151, 157, 42 N.W.2d 462, 465 (1950). The city asserts, however, that the legislation repealed in
Thompson
was part of a general village charter law set out in sec. 61.34, Stats (1933). The city therefore reasons that charter ordinances initiated by direct legislation can
be used only to repeal or amend existing portions of a charter but cannot repeal or amend existing non-charter city legislation. We disagree.
A municipal charter is the constitution of the municipality, that is, a statement of the municipality's fundamental or organic laws.
See
2 E. McQuillin, The Law of Municipal Corporations § 9.03 (3d ed. 1979). Under the city's argument, the prior enactment of non-charter legislation would prevent any subsequent and otherwise validly enacted charter ordinance from dealing with the same subject matter. This result is contrary to the concept that constitutional provisions meeting all of the enactment requirements control over any existing or future legislative enactment.
See State v. Neveau,
237 Wis. 85, 96-97, 294 N.W. 796, 802 (1940).
We conclude, therefore, that the proposed charter ordinance met all of the challenged requirements. As a result, we affirm the trial court's decision to submit the proposal to a vote of the electorate.
By the Court.
— Judgment affirmed.