Jensen v. Bd. of Supervisors of the Polk

• Decision Date: 23 September 1879
• Citation: 47 Wis. 298,2 N.W. 320
• Parties: STEWART JENSEN, RESPONDENT, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF POLK, APPELLANT.
• Court: Wisconsin Supreme Court

47 Wis. 298

2 N.W. 320

STEWART JENSEN, RESPONDENT,

v.THE BOARD OF SUPERVISORS OF THE COUNTY OF POLK, APPELLANT.

Supreme Court of Wisconsin.

Filed September 23, 1879.

Appeal from circuit court, Polk county.L. P. & J. K. Weatherby and Gregory & Pinney, for respondent.

S. H. Clough and Geo. D. McDill, for appellant.

TAYLOR, J.

This case involves the construction and validity of chapter 223, Laws 1875, as well as the regularity and validity of the proceedings of the commissioners named in said act.

The act provides for laying out and opening a state road in the counties of Polk and Burnett. One of the main questions in the case arises upon the construction of sections 3, 4, 5 and 6, of said chapters, of which the following are copies:

“Section 3. Upon the filing the order and survey of said road in the office of the county clerk in the several counties through which said road may pass, the said road shall become [a] public highway; and the said commissioners shall have full power to open out said highway, remove obstructions, build bridges, construct drains, corduroys, and culverts, and may do the same by contract or otherwise, in the same way and manner, and to the same extent, that supervisors of towns have to open highways in their respective towns.

Section 4. As a compensation for laying out and opening out said road, said commissioners shall be entitled to the sum of three dollars and fifty cents per day for each day's service rendered in laying out and opening said road. Said commissioners shall have the power to employ such assistants as may be necessary, not to exceed five, who shall receive as compensation not more than one dollar and fifty cents per day; also one surveyor, who shall be entitled to receive not more than five dollars per day for each day's service as surveyor. Said commissioners shall have the power to procure all needful subsistence at a reasonable price, said subsistence to be paid for by the counties through which said road may run, in proportion to the amount used in each county, in laying out and opening said road.

Section 5. There shall not be more than three of said commissioners employed at any time in laying out said road, or in opening said road, and no more than three of said commissioners shall be entitled to compensation for laying out and opening of said road at any one time.

Section 6. When said commisioners shall have filed an order and survey of said road in the office of the county clerk in each of the counties through which said road shall run, it shall be the duty of the county board of supervisors, in each of those counties, to audit the accounts of said commissioners, on their filing such accounts, properly verified, with said county clerks.”

This action is brought by the plaintiff to recover the sum of sixty dollars, which he claims is due to him from the defendant county for clearing and grubbing two acres in said county of Polk, on the line of the road, as the same is claimed to have been located by said commissioners under said act, the work having been done under a contract with said commissioners. He presented his claim to the county board of supervisors of said county, the board refused to allow it, he appealed to the circuit court of said county, and upon a trial in said court he recovered a judgment against the county for the amount of his claim and costs, and the defendant appeals to this court.

The first ground of error alleged which we shall notice is, that under the act of 1875, above quoted, the county of Polk is not obligated to pay the plaintiff for the work performed by him in grubbing and clearing said highway, admitting the act to be valid and constitutional.

It is admitted that unless this act renders the defendant liable to pay for such work the plaintiff was not entitled to recover in the court below. The only general laws applicable to the case are sections 89, 96 and 99, c. 19, Rev. St. 1858. Section 89 provides, among other things, that “all state roads which shall hereafter be laid out shall be opened and worked the same as other highways,” and contains provision for appraising the damages of persons whose lands are taken for such roads. Section 96 provides that the commissioners appointed to lay out such highways shall be paid for their services, by the counties through which the road passes, such sum as the supervisors of such counties shall deem just. Section 99 provides that “all damages occasioned by the laying out and opening of any state road shall be paid by the several counties in which the same may be located.”

It is clear that under these general provisions the counties in which a state road is located can only be compelled to pay for the services of the commissioners and their assistants in laying out and locating such road, and the damages which may be awarded to the land owners for lands which may be taken by the laying out and opening thereof, leaving the duty of opening the road for the purposes of travel, and the expenses of putting the same in a condition so that the same may be traveled by the public, upon the towns in which the same are located. The provision in section 89 that “all state roads shall be opened and worked the same as other highways,” clearly throws the expense of such opening and working upon the towns in which they are situated, as the only general laws upon the subject of opening and working highways require that the same shall be so opened and worked by the towns in which they are situated and by the officers of such towns. This was the construction given to this provision by the state revisers, and in order that there might be no doubt upon this construction of the law hereafter, they made that part of said section read as follows: “All state roads shall be opened and worked as other highways by the several towns in which the same are or may be located.” Section 1316, Rev. St. 1878.

In 1863 the legislature first conferred power upon the several boards of supervisors of the counties to lay out highways in certain cases, and it was provided that, in regard to these roads so laid out, “they should be opened and repaired in the respective towns in the same manner as other highways.” Section 7, c. 133, Laws 1863; section 134, c. 152, Laws 1869; Taylor Stat. p. 506, § 122. And the county board was given the power to open such highways when the town should refuse to do so, but no power was given to work or repair the same by the county. Chapter 117, Laws 1869, was the first general law which authorized any county to construct and keep in repair highways. This act was limited to the county of Brown, with a proviso that any other county might adopt the same, (specifying the manner in which the same could be adopted.) Chapter152, Laws 1872, authorized the several boards of supervisors to raise money by taxation to be expended in building and repairing roads in their respective counties. This chapter was amended by chapter 139, Laws 1876, and is embodied in the Revised Statutes of 1878, § 1308 to 1311, inclusive. The law of 1872, as amended by chapter 139, Laws 1876, provided that after a road which, under the provisions of such law, had been kept in repair by the county was turned over again to the control of the town in which the same was situated, if the town should refuse to keep the same in repair the county, after giving such town due notice to repair the same, might repair it, and charge the costs of such repair to the town; and the revisors, in section 1311, Rev. St. 1878, extended this power to state roads, so that now, if any town shall refuse to keep in repair any state or county road, the county board may cause the same to be repaired at the expense of such town. From an examination of these different laws upon the subject of highways it will be found that the general rule is that all highways, whether laid out by the town authorities, the county authorities, or by commissioners appointed directly by the legislature, must be opened and worked at the expense of the towns in which they are located; but a general power is, however, given to the county boards of the several counties to raise money for the purpose of keeping such of the main traveled roads in repair in their respective counties as they may adopt for that purpose, and the roads so adopted by the counties, whilst kept in repair by the counties, shall not be under the control of the town authorities, nor shall the town authorities be responsible for injuries resulting by reason of their being out of repair whilst under such control. Section 1339, Rev. St. 1878. There is also a coercive power given to the counties to compel the towns to keep state roads in their respective towns in repair. The only other general law which authorizes counties to expend money upon highways is section 115, c. 152, Laws 1869, now section 1319, Rev. St. 1878, and this restricts the expenditure by the county to aid in the building of bridges in certain specified cases. The responsibility of opening and keeping in repair the highways of the state outside out of the cities and villages is devolved upon the towns in which they are situated, irrespective of the authority which lays out and establishes the same, and the towns are not relieved of this responsibility by any general law which compels the opening and repair of the same by the counties.

It follows, therefore, that the county of Polk cannot be compelled to pay for clearing and grubbing this state road by force of any general law upon that subject, and if compelled to pay, it must be by virtue of the provisions of said chapter 223, Laws 1875. The general rule and policy of the law is to cast the burden of constructing and repairing such highways upon the towns where located, and in order to change this policy and cast the burden upon the county, it must clearly appear from the act in question that such was the intent of the legislature. If the legislature have left it in doubt, then we...