Town of Vernon v. Waukesha County

• Decision Date: 27 October 1980
• Docket Number: No. 79-1912,79-1912
• Citation: 299 N.W.2d 593,99 Wis.2d 472
• Parties: TOWN OF VERNON, a Quasi-Municipal Corporation, Plaintiff-Respondent and Cross- Appellant. v. WAUKESHA COUNTY, a Quasi-Municipal Corporation; Waukesha County Highway Committee-Highway and Transportation Commission; and Waukesha County Highway Commissioner, Defendants and Co-Appellants and Cross-Respondents, Village of Eagle and Town of Eagle, Intervening Plaintiffs-Respondents and Cross-Appellants,* Town of Genesee, Town of Mukwonago and Town of Pewaukee, Intervening Plaintiffs-Respondents, State of Wisconsin, State of Wisconsin Department of Transportation, Intervening Defendant-Appellant and Cross-Respondent.
• Court: Wisconsin Court of Appeals

Page 593

299 N.W.2d 593

99 Wis.2d 472

TOWN OF VERNON, a Quasi-Municipal Corporation Plaintiff-Respondent and Cross- Appellant. v. WAUKESHA COUNTY, a Quasi-Municipal Corporation; Waukesha County Highway Committee-Highway and Transportation Commission; and Waukesha County Highway Commissioner Defendants and Co-Appellants and Cross-Respondents Village of Eagle and Town of Eagle, Intervening Plaintiffs-Respondents and Cross-Appellants,* Town of Genesee, Town of Mukwonago and Town of Pewaukee Intervening Plaintiffs-Respondents, State of Wisconsin, State of Wisconsin Department of Transportation, Intervening Defendant-Appellant and Cross-Respondent.

No. 79-1912.

Court of Appeals of Wisconsin.

Argued Aug. 20, 1980.

Opinion Released Oct. 27, 1980.

Opinion Filed Oct. 27, 1980.

Review Granted.

Mark S. Gempeler, Corp. Counsel, Waukesha, for defendants and co-appellants and cross-respondents.

Bronson C. La Follette, Atty. Gen., and Steven C. Underwood, Asst. Atty. Gen. (argued), on brief, for intervening defendant-appellant and cross-respondent.

Patrick F. Brown (argued), of Love, Brown, Love, Phillips & Davis, Waukesha, on brief, for plaintiff-respondent and cross-appellant.

David C. Williams (argued), of Allen, Harrison & Williams, Lake Geneva, on brief, for intervening plaintiff-respondents and cross-appellants.

Before VOSS, P. J., and BROWN and SCOTT, JJ.

SCOTT, Judge.

The principal issue in this case is whether sec. 83.025(1), Stats., grants county boards the authority to remove highways from a county trunk highway system without obtaining the approval of the municipalities upon which control of the removed highways would devolve. We conclude that sec. 83.025(1) grants county boards such unilateral authority.

The facts are undisputed and are briefly as follows. The County Board of Waukesha County, acting pursuant to sec. 83.025(1), Stats., passed a resolution removing several named highways from the Waukesha County Trunk Highway System. These highways included a portion of County Trunk Highway NN, located in the Towns of Mukwonago and Vernon, and a portion of County Trunk Highway N, located in the Town and Village of Eagle. The Wisconsin Department of Transportation approved the removal of the highways from the system.

The Town of Vernon subsequently sued Waukesha County, seeking a judgment declaring the County's resolution invalid. At a court hearing, the County agreed not to remove the highways from the system until the validity of the action was finally decided. The State of Wisconsin and several municipalities subsequently intervened.

The trial court denied the State's motion for judgment on the pleadings dismissing the Town's complaint and granted the Town's motion for summary judgment. The court's decision barred the County from unilaterally removing the highways listed in the resolution from the county trunk system. The court awarded the Town costs, disbursements and expert fees against the State and County and denied the Town's request for attorney fees.

The State and County appeal from that part of the judgment denying that counties have authority to unilaterally remove highways from their county trunk systems. The State also appeals the awarding of costs, disbursements and expert fees against the State and from the denial of the State's motion to dismiss the action. The Town of Vernon appeals the denial of its request for attorney fees. The Town of Eagle appeals from that part of the judgment denying retroactive effect of the judgment.

It is undisputed that a county board has only such powers as are expressly conferred upon it or necessarily implied from those expressly given. Dodge County v. Kaiser, 243 Wis. 551, 557, 11 N.W.2d 348, 350 (1943). The issue before us is what powers are expressly conferred upon the County under sec. 83.025(1).

Section 83.025(1), Stats., provides:

County trunk highways. (1) The systems of county trunk highways heretofore selected by county boards and approved by the department of transportation are hereby validated. Changes may be made in the county trunk system by the county board if it deems that the public good is best served by making such changes. The county board in making such changes may order the county highway committee to lay out new highways and acquire the interests necessary by the procedures under s. 83.08. Such systems, however, may be altered or increased only with the consent of the department of transportation. The county board, or the county highway committee, shall, by conference with the boards or highway committees of adjoining counties, or otherwise, cause their respective systems to join so as to make continuous lines of travel between the counties. Any highway which is a part of the county trunk system shall, by virtue thereof, be a portion of the system of county aid highways. Any city or village street or portion thereof selected as a portion of such system prior to May 1, 1939, shall be a portion of such system. All streets or highways in any city or village over which is routed a county trunk highway or forming connections through such city or village between portions of the county trunk highway system shall be a part of such system unless the governing body of the city or village, by resolution, removes such street or highway from the county trunk system, but such removal shall apply only to that portion of any street or highway which is situated wholly within the city or village. In counties having a population of 500,000 or more the county board may remove from the county trunk highway system any part thereof which lies within an incorporated village or city, but such removal shall not be effected until one year after annexation proceeding affecting the area in question has become final. Whenever a county has completed a functional and jurisdictional classification of highways and such classification plan has been approved by the county board, the local governing bodies and the department of transportation, those roads and streets allocated to the county's jurisdiction will be known as county trunk highways. Additions and deletions from such county trunks in the various municipalities may be made only by the county board with the consent of the department of transportation. (Emphasis added.)

The statute permits the county board to make "changes" in the trunk highway system. The term "changes" has a broad meaning but is not ambiguous. A word or statute is ambiguous when capable of being interpreted by reasonably well-informed persons in either of two or more senses. Wisconsin Bankers Association v. Mutual Savings & Loan, 96 Wis.2d 438, 450, 291 N.W.2d 869, 875 (1980). As the trial court found, a "change" means a "substitution," a putting of one thing in place of another, an "alteration." A "change" does not mean a "discontinuance." A "change" is an instance of making different in some particular. See Webster's Third International Dictionary p. 374 (17th ed. 1976).

Because a "change" is not a "discontinuance," the trial court reasoned that the County could not "discontinue" a trunk highway. The trial court failed, however, to recognize the distinction between a "highway" and a "system" of highways. A "highway" is the physical entity of a roadway; a "system" is the grouping of highways for maintenance, financial, governmental control, or other purposes.

Section 83.025(1) provides the county board may make changes in the system of county trunk highways. A change includes an increase or decrease in size. Section 83.025(1), therefore, provides that the county board may increase or decrease the size of the system, subject, of course, to a finding that the increase or decrease is deemed to be in the public good and subject to approval by the Department of Transportation.

The trial court's failure to recognize the difference between a "highway" and a "system" of highways is apparent from its decision when it reasons: "The specific powers ... to 'alter' or 'increase' the trunk highways, clearly do not include within their scope of powers to 'discontinue' a trunk highway." The statute does not, however, refer to the alteration or increase of "highways," but to the alteration or increase of the whole "system" of county trunk highways. The broad power to change or alter the system includes, unambiguously, the power to decrease the size of the system by removing particular highways from the system. Huening v. Shenkenberg, 208 Wis. 177, 242 N.W. 552 (1932), relied on by the trial court to demonstrate the distinction between "alteration" and "discontinuance" of a highway is inapposite. We are concerned with the alteration, not the discontinuance, of a system of highways.

Having concluded that sec. 83.025(1) is not ambiguous, we need not go behind the statute to determine its intent. As a general rule, a statute must be unclear or ambiguous before a court is warranted in reviewing matters outside the statutory language to determine the meaning intended. State v. Tollefson, 85 Wis.2d 162, 167, 270 N.W.2d 201, 203 (1978). However, in view of the trial court's detailed analysis of various extrinsic materials, we deem it appropriate to demonstrate how these same materials are consistent with reading sec. 83.025(1) to grant the County authority to remove highways from the county trunk system.

In 1940, the Attorney General issued an opinion to the State Highway Commission dealing with the precise issue which is here on appeal. In that opinion, the Attorney General interpreted the statutory provision that the system "shall be altered or increased only with the consent of the commission" to permit the county to remove highways from the system. ¹

Since 1940, the legislature has amended the statute eight times but has failed to change the substance of the sentence interpreted by the Attorney General. Section 83.025(1) still provides that the system "may be altered or increased only with the consent of the department of...