State v. Consolidated Freightways Corp.

• Decision Date: 02 June 1976
• Docket Number: No. 75--49,75--49
• Citation: 242 N.W.2d 192,72 Wis.2d 727
• Parties: STATE of Wisconsin, Respondent, v. CONSOLIDATED FREIGHTWAYS CORPORATION, a Delaware Corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 192

242 N.W.2d 192

72 Wis.2d 727

STATE of Wisconsin, Respondent, v. CONSOLIDATED FREIGHTWAYS CORPORATION, a Delaware Corporation, Appellant.

No. 75--49.

Supreme Court of Wisconsin.

Argued May 4, 1976.

Decided June 2, 1976.

John P. Varda, John D. Varda, attys., on brief, and DeWitt, McAndrews & Porter, S.C., of counsel, and Michael Varda, argued, Madison, for appellant.

Albert Harriman, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondent.

CONNOR T. HANSEN, Justice.

Consolidated was issued three citations alleging that certain of its vehicles exceeded the weight limitations prescribed by sec. 348.15, Stats. Trial was held on the first citation. It was stipulated by the parties that the decision reached as to that citation would be determinative of the decision as to all three charges.

The citation alleged that Consolidated violated sec. 348.15(3)(b), Stats.:

'(3) For enforcement purposes only and in recognition of the possibility of increased weight on a particular wheel or axle or group of axles due to practical operating problems, including but not limited to accumulation of snow, ice, mud or dirt, the use of tire chains or minor shifting of load, no summons or complaint shall be issued, served or enforced under sub. (2) unless:

'. . .

'(b) The gross weight imposed on the highway by the wheels of any one axle exceeds 19,500 pounds; or

'1. The gross weight imposed on the highway by the wheels of any one axle exceeds 21,000 pounds in the case of a 2-axle motor truck transporting exclusively milk from the point of production to the primary market and the return of dairy supplies and dairy products from such primary market to the farm when operated on highways not a part of the national system of interstate and defense highways.

'2. The gross weight imposed on the highway by the wheels of any one axle exceeds 21,500 pounds or, for 2 axles less than seven feet apart, 35,000 pounds or, for groups of 3 or more consecutive axles more than 9 feet apart, a weight of 4,000 pounds more than is shown in par. (c) or permitted under par. (d) when transporting peeled or unpeeled forest products cut crosswise. This section shall not apply to the national system of interstate and defense highways.'

The truck in question was not transporting milk, dairy products, or peeled or unpeeled forest products cut crosswise.

Sections 348.15(5) and 348.15(5r), Stats., provide methods for ascertaining weight measurements:

'(5) For enforcement of weight limitations specified by this chapter the gross weight, measured in pounds, imposed on the highway by any wheel or any one axle or by any group of 2 or more axles shall be determined by weighing the vehicles and load, either by single draft or multiple draft weighing on scales in good working order which are tested periodically by the department of agriculture or other authorized testing agencies for accuracy to within standard accepted tolerances. The weighing operation shall be performed in accordance with and under conditions accepted as good weighing technique and practice. In multiple draft weighing the sum of the weight of respective components shall be used to establish the weight of a combination of the components. It is recognized that the weight, determined in accordance with methods herein prescribed, includes all statutory tolerances and represents the momentary load force or reaction imposed on the scale at the time of weighing. Such tolerances include any variation due to (a) positioning or tilt of the vehicle on the scale platform and adjacent bearing surface; (b) momentary position of axle centers with respect to wheel bearings and vehicle body; (c) temporary distribution of loading on the wheel or axle; and (d) miscellaneous variable factors of spring flexure, shackle friction, clutch engagement, brake pressure, tire compression and other variable factors.

'(5r) Irrespective of sub. (5), in determining overweight under sub. (3)(b)2 the results of weighing by means of portable scales shall be admissible as evidence, but the operator may request reweighing on a certified stationary scale. Portable scales shall be checked by weighing in comparison to certified stationary scales within 10 days immediately prior to any weighing operation. In all cases where a vehicle is weighed on a certified stationary scale, axles less than 6 feet apart shall be weighed as one unit.' (Emphasis added.)

Sec. 348.15(3)(b)2, Stats., prescribes regulations for the transportation of certain forest products.

The cited vehicle was weighed on a state scale, by a state department of transportation inspector. The parties stipulated that the scale was accurate in its measurement. The measurement was obtained in the following manner. The steering axle, number one, was weighed first. Axles number two and three were weighed together. It was stipulated that the distance between these two axles was less than six feet. The total weight of the two axles was found to be 31,460 pounds. Axle number three was weighed by itself and the weight obtained was 7,760 pounds. This weight was subtracted from the combined weight of axles number two and three. In this manner, the weight of axle number two was determined to be 23,700 pounds. Axle number two was not weighed by itself. The inspecting officer testified as to why it was impossible to do so.

'A As the vehicle comes on the scale, you have your steering axle first, and our platform is 24 by 12, there would be no way possible to weight axle 2 by itself. If he took 3 off and had 2 on the scale, the steering axle, axle 1, would still be on the scale. There would be no way to get axle 1 off the scale.'

This undisputed testimony is to the effect that because of the location of axles one, two and three, it is physically impossible to weigh axle two alone on an existing state certified stationary scale.

The weight of axle number two exceeded the statutory maximum allowed by 4,200 pounds. Therefore, the citation alleging a statutory violation was issued to Consolidated by the state inspector.

The trial court found that the weighing method utilized to measure the load complied with the requirements of sec. 348.15(5), Stats. It further found that sec. 348.15(5r) in its entirety applied only to weighing procedures under sec. 348.15(3)(b)2, relating to transportation of peeled or unpeeled forest products cut crosswise. Thus, it was determined the statutory provisions of sub. 3(b)2 for weighing axles two and three (the axles less than six feet apart) as one unit was not applicable. Therefore, Consolidated was found guilty of the charges as alleged in the three citations.

This appeal presents two issues for resolution:

1. Did the trial court commit error in its conclusion that the weighing method utilized complied with the requirements of sec. 348.15(5), Stats.?

2. Did the trial court commit error in its conclusion that sec. 348.15(5r), Stats., in its entirety applies only to determinations of overweight under sec. 348.15 (3)(b)2, relating to transportation of peeled or unpeeled forest products cut crosswise?

WEIGHING PROCEDURE.

Section 348.15, Stats., places limitations upon the weight which a vehicle or its various components may impose upon Class 'A' highways. Its purpose was recognized in State v. Dried Milk Products Co-operative (1962), 16 Wis.2d 357, 362, 114 N.W.2d 412, 415:

'. . . The statutes here involved are designed to prevent illegal overloading which causes premature deterioration of public highways. Under its police power, the state may subject the use of highways to reasonable regulations and the weight restrictions. . . .'

See also: 60 C.J.S. Motor Vehicles § 32, p. 237; 7 Am.Jur.2d, Automobiles and Highway Traffic, pp. 715, 716, sec. 160; Annot. 75 A.L.R.2d 376. Sec. 348.21(3), provides a forfeiture penalty for the violation of sec. 348.15.

Section 348.15(5), Stats., was enacted by ch. 603, Laws of 1957, and has remained unchanged since its enactment. The sentences of the statute pertinent to the issue under discussion provide that: '. . . The weighing operation shall be performed in accordance with and under conditions accepted as good weighing technique and practice. In multiple draft weighing the sum of the weight of respective components shall be used to establish the weight of a combination of the components. . . .'

Consolidated argues that the method used for determining that axle number two exceeded the maximum limitation does not comport with standards accepted as good weighing technique. In support of its position, it presented to the trial court copies of certain pages from a publication of the United States Department of Commerce, Bureau of Standards entitled NATIONAL BUREAU OF STANDARDS HANDBOOK 44--4th Edition 1971, Specifications, Tolerances, And Other Technical Requirements For Commercial Weighing And Measuring Devices. That publication contains a paragraph indicating that single draft weighing of vehicles is preferred to multiple draft weighing. Consolidated submits that it cannot be convicted of an overload violation when that overload was measured by weighing two axles together and then subtracting the weight of one from the combined total.

The trial court noted that regardless of the handbook standards, the statute specifically permits multiple draft weighing, as well as use of the sum of the weight of various components to determine the weight of a combination of components, sec. 348.15(5), Stats., supra. It, therefore, concluded that the converse was also permitted in that subtraction of the weight of one component from a combined weight is allowed in order to measure the weight of the second component. The circuit court affirmed this conclusion. We find no error in this determination.

In State v. Trailer Service, Inc. (1973), 61 Wis.2d 400, 212 N.W.2d 683, this court was presented with the question of what constitutes good weighing procedure. The weight imposed...