Town of Vernon v. Waukesha County

• Decision Date: 01 September 1981
• Docket Number: No. 79-1912,79-1912
• Citation: 307 N.W.2d 227,102 Wis.2d 686
• Parties: TOWN OF VERNON, a quasi-municipal corporation, Plaintiff-Respondent and Cross- Appellant (Petitioner), 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 Plaintiff-Respondents and Cross-Appellants (Petitioners), 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 Supreme Court

Page 227

307 N.W.2d 227

102 Wis.2d 686

TOWN OF VERNON, a quasi-municipal corporation Plaintiff-Respondent and Cross- Appellant (Petitioner), 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 Plaintiff-Respondents and Cross-Appellants (Petitioners) 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.

Supreme Court of Wisconsin.

Argued June 2, 1981.

Decided June 30, 1981.

Reconsideration Denied Sept. 1, 1981 ^*.

Patrick F. brown (argued), Waukesha, for Town of Vernon; Steven J. Steinhoff and Love, Brown, Love, Phillips & Davis, Waukesha, on brief.

Mark S. Gempeler, Corp. Counsel, Waukesha, for Waukesha County et al.

David C. Williams, Lake Geneva, for Village of Eagle and Town of Eagle.

Steven C. Underwood, Asst. Atty. Gen. (argued), for State of Wis.; Bronson C. La Follette, Atty. Gen., on brief.

Thomas A. Schroeder, Madison, for amicus curiae Wisconsin County Boards Association.

HEFFERNAN, Justice.

The only issue presented by this case is whether, under the provisions of sec. 83.025(1), Stats., a county can, without the consent of a town, remove a highway located therein from its county trunk highway system. We conclude that a county may do so without the consent of the town; and, accordingly, we affirm the decision of the court of appeals, 99 Wis.2d 472, 299 N.W.2d 593, which reversed the judgment of the circuit court.

The record shows that, in October of 1978, the county board of Waukesha county, acting under the color of authority conferred upon it by sec. 83.025(1), Stats., passed a resolution which removed several highways from the Waukesha county trunk highway system. Portions of county trunk 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, were deleted from the Waukesha county's trunk highway system. These deletions from the trunk highway system were approved by the Wisconsin department of transportation on December 13, 1978, and the transfer and control of the highways to the towns and the village in which they were located was to take effect on July 1, 1979.

The town of Vernon, questioning the authority of the county to take such action, commenced an action for declaratory relief, seeking a declaration from the circuit court for Waukesha county that the county was without power to delete highways from its trunk system. The village and town of Eagle, the town of Genesee, the town of Mukwonago, and the town of Pewaukee were permitted to intervene as plaintiffs; and the state of Wisconsin and its department of transportation intervened as defendants.

A motion by the defendants for judgment on the pleadings was denied, and on November 1, 1979, the circuit court granted the plaintiffs' motion for summary judgment, which declared that the county of Waukesha did not have the authority either to make additions to, or deletions from, the Waukesha county trunk highway system, because the county had not completed a "functional and jurisdictional classification of highways," as provided in sec. 83.025(1), Stats. The trial court concluded that the adoption of such a classification plan approved by the county board, the local governing bodies of the county, and the department of transportation was a prerequisite to a county's exercise of jurisdiction to either add to, or to delete, highways from the county trunk highway system.

Waukesha county and the state of Wisconsin and their concerned departments appealed from the judgment.

The basic argument of the state and county was that the statute clearly, and without equivocation, authorizes a county to make changes in its highway system and that, by necessity, a change in such system can only be accomplished by either additions to, or deletions from, the system. It further relied upon the argument that the long-standing, practical, and administrative construction of the statute had reinforced the plain meaning of sec. 83.025(1), Stats., in its intent to allow county boards to delete portions of highways from the county trunk highway system.

The basic argument of the towns and village was that a county is a creature of the legislature and that it has only such powers as are expressly given to it, and that, because there is no grant of authority to permit a county board to delete a highway from its county trunk system (except pursuant to a properly adopted functional and jurisdictional classification), that power must be assumed not to exist. It is true, of course, that a county board has only such powers as are expressly conferred upon it or necessarily implied from the powers expressly given or from the nature of the grant of power.

The question then is simply one of statutory interpretation: What powers were expressly or impliedly conferred upon Waukesha county by sec. 83.025(1), Stats.1977? That section of the statute provides:

"83.025 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."

The general grant of power is conferred by the sentence in the section stating: "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 statute then goes on to specifically give the county board authority to lay out new highways. It is thus apparent that the legislature specifically encompassed the layout of a new highway as being within the general authorization to make changes in the county trunk system. This is a power conferred separately from the statutory provision allowing additions or deletions pursuant to a functional or jurisdictional plan. It is thus obvious that the power to change the system not only logically, but by express language, carries with it the authority to make "changes" in respect to a single highway.

The statute further provides that, under this authority, the system may be altered or increased. Because, as we have demonstrated, a change in the system specifically encompasses an order laying out a new highway a change which would be an increase in the system an alteration of the system clearly means something other than merely increasing the system by laying out a new highway. The statute provides: "Such systems...