2008 WI 83
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Supreme Court of |
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Case No.: |
2006AP2554 |
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Complete Title: |
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Town of Plaintiff-Respondent, v. Defendant-Appellant-Petitioner. |
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REVIEW OF A DECISION OF THE COURT OF APPEALS 2007 WI App 177 Reported at: 304 (Ct. App. 2007-Published) |
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Opinion Filed: |
July 9, 2008 |
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Submitted on Briefs: |
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Oral Argument: |
January 17, 2008
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Source of Appeal: |
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Court: |
Circuit |
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County: |
Dane |
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Judge: |
David T. Flanagan
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Justices: |
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Concurred: |
ABRAHAMSON, C.J., concurs (opinion filed). |
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Dissented: |
ROGGENSACK, J., dissents (opinion filed). PROSSER and ZIEGLER, JJ., join the dissent. |
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Not Participating: |
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Attorneys: |
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For the defendant-appellant-petitioner there were briefs
by Marcia MacKenzie, corporation
counsel, and Gary Rehfeldt, assistant
corporation counsel,
For the plaintiff-respondent there was a brief by John M. Gerlach and Larowe, Gerlach & Roy, LLP,
An amicus curiae brief was filed by Andrew T. Phillips, Kristen D. DeCato, and Stadler,
2008 WI 83
notice
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
REVIEW of a decision of the Court of Appeals. Reversed and cause remanded.
¶1 LOUIS
B. BUTLER, JR., J. This is a
review of a published court of appeals opinion[1]
affirming a judgment of the Dane County circuit court, Judge David T. Flanagan,
III, presiding. The
¶2 The dispute in this case began when the County rejected the Town's Wis. Stat. § 81.38(2001-02)[2] "bridge aid" petition as not meeting the statutory criteria for reimbursement. The Town filed a complaint with the Dane County Circuit Court, and the County's answer included the affirmative defense that the bridge was not "on a highway maintainable by the town" as required by § 81.38.
¶3 In a summary judgment decision and order, the circuit court entered judgment for the Town, concluding that the County was responsible for paying one-half the cost of the bridge and ordering the County to pay $75,000 plus costs and fees. The court of appeals affirmed the circuit court decision.
¶4 We conclude that the bridge at issue in this case was not a "bridge on a highway maintainable by the town" within the meaning of Wis. Stat. § 81.38 because the bridge aid petition did not request funding to help connect the bridge to a highway maintainable by the Town or for the frontage road extension project in its entirety, because there was no existing highway extending to the planned bridge site at the time of the Town's petition, and because the bridge was still not connected to a highway upon completion. Section 81.38 requires funding for only those bridges built on highways in existence at the time of a bridge's construction. As such, the County appropriately denied the Town's § 81.38 "bridge aid" petition. We therefore reverse.
I
¶5 The relevant facts of this case are not in dispute. The most pertinent facts relate to the Town's
June 10, 2004, Dane County Bridge Aid Program petition for financial assistance
in building a bridge ("the bridge").[3] In its petition and accompanying letter, the
Town requested $75,000[4]
for a new railroad overpass bridge that, the letter explained, "will be
constructed as part of the South Madison EDA Project, which includes the construction
of an extension of the
¶6 The formal petition requesting bridge aid did not describe the
bridge itself as being on or connected to a highway, but described the bridge
as located 1500 feet west of the nearest intersecting road. Architectural plans submitted along with the
petition detail the design of the bridge but do not describe the bridge as
being connected to any existing or future highways. However, the plans do describe the location
of the bridge as "
¶7 Photographs and maps included in the record further clarify that
the roadways the Town's project sought to connect, consisting of a segmented
portion of
¶8 In a letter dated September 9, 2004, the County denied the Town's
request to include funding for the bridge in the County's budget, stating that
the bridge did not qualify for the bridge aid program. The Town subsequently served the County with
a notice of claim and claim, and an amended notice and accompanying claim,
pursuant to Wis. Stat. § 893.80(1)(a)-(b). The amended notice formally recited the
Town's June 10, 2004, "request for
¶9 Despite the County's bridge aid denial, the Town began construction of the bridge in January 2005, and construction was completed in March 2005. After the bridge was built, construction began that connected the roadway to the bridge on both sides. The extension of the roadway connecting it with the bridge was completed in August 2005, and the new road was dedicated in October 2005.
¶10 On May 6, 2005——after the bridge was built but before it was connected to the frontage road——the Town filed suit against the County seeking damages of $75,000, plus attorney's fees and costs. Although its answer admitted the facts alleged by the Town,[6] the County also included in its answer a request that the circuit court dismiss the action on the basis of two affirmative defenses.
¶11 The first affirmative defense raised by the County, which is the central issue upon review, was its assertion that "[i]nsofar as the section of highway has not been constructed, it is not yet maintainable, and since the plaintiff's new construction of the bridge is not 'on a highway maintainable by the town' as required by Wis. Stat. § 81.38(2003), the bridge does not qualify for aid." The County's second affirmative defense was an assertion that the Town failed to state a cause of action upon which relief may be granted. The circuit court does not appear to have addressed the County's dismissal request.
¶12 On April 27, 2006, the Town filed a motion for summary judgment. The circuit court granted the Town's summary judgment motion. The court concluded that it is illogical and inconsistent with Wis. Stat. § 81.38's purpose of having counties absorb half the cost of bridge construction and repair to interpret "on a highway" to apply only to existing highways because "new bridges are often constructed where no highway existed previously." The court ruled that "recovery under Wis. Stats. § 81.38 is not precluded by the fact that a maintainable highway is not yet in existence," and ordered the County to pay $75,000 plus costs and fees.
¶13 On appeal by the County, the court of appeals described the proposed bridge as "connect[ing] previously unconnected portions of existing highways,"[7] and affirmed the judgment, concluding that Wis. Stat. § 81.38 "includes aid for bridge construction where there is no preexisting highway if the completed bridge is 'on a highway maintainable by the town.'" Town of Madison v. County of Dane, 2007 WI App 177, ¶¶1, 17, 22, 304 Wis. 2d 402, 737 N.W.2d 16.
¶14 The County sought review by this court, and on September 13, 2007, review was granted.
II
¶15 The
standard for reviewing summary judgment decisions is set forth by Wis. Stat.
§ 802.08(2)(2005-06), which provides that summary judgment shall be
granted "if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law." We
review summary judgment decisions de novo, applying the same standards as a
circuit court. Green Spring Farms v.
Kersten, 136
¶16 In this case, neither party argues that there is a genuine issue of material fact. As such, we solely decide whether the Town is entitled to judgment as a matter of law. The question of law in this case is one of statutory interpretation. The outcome of the case depends on the meaning of Wis. Stat. § 81.38's language requiring a county to levy a tax to fund a bridge's construction or repair if it is "on a highway maintainable by the town."
¶17 When we interpret a statute, we begin with the text of the statute,
and "[i]f the meaning of the statute is plain, we ordinarily stop the
inquiry." State ex rel. Kalal v.
Circuit Court, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citations
omitted). Statutory language is
generally given its common, ordinary and accepted meaning.
¶18 In addition to these well-established statutory construction
principles, we observe that nearly a century ago, in interpreting a predecessor
version of the bridge aid statute, this court held that the statute is subject
to strict construction. State ex rel.
III
¶19 The
bridges of
(1) When any town has voted to construct or repair any . . . bridge on a highway maintainable by the town, and has provided for such portion of the cost of such construction or repair as is required by this section, the town board shall file a petition with the county board setting forth said facts and the location of the . . . bridge; and the county board, except as herein provided, shall thereupon appropriate such sum as will, with the money provided by the town, be sufficient to defray the expense of constructing . . . [the] bridge . . . .
(2) . . . The town and county shall each pay one-half of the cost of construction or repair above $1,500. . . .
¶20 The dispute in this case pertains to the phrase "on a highway
maintainable by the town"
contained within Wis. Stat. § 81.38(1), describing bridges funded under
the statute. The County frames its
dispute with the Town and with the lower court decisions by focusing on the
word "highway," a word that is defined elsewhere in the Wisconsin
Statutes, but not within ch. 81. See
Wis. Stat. §§ 340.01(22) and 990.01(12)(2005-06)(defining
"highway" as "all public ways and thoroughfares
and . . . bridges upon the same"). See also Morris v. Juneau
County, 219
¶21 The
Town does not dispute that Wis. Stat. §§ 340.01(22) and 990.01(12) contain
applicable definitions of "highway."[9] The
Town agrees that in Morris, this court held that the § 340.01(22)
definition was applicable to a ch. 81 case.
However, the Town contends, the agreed upon statutory definition does
not resolve the issue of whether a highway must be pre-existing, and Wis. Stat.
§ 81.38 does not require that the "highway maintainable by the
town" exist prior to the bridge's construction.
¶22 As such, what the parties disagree about is not the literal meaning of "on a highway maintainable by the town" but whether there are any temporal restrictions modifying that phrase. The parties disagree about when a bridge must be "on a highway maintainable by the town" in order to qualify for bridge aid, and the related question of when that maintainable highway must exist in relation to the bridge.
¶23 Specifically, the County argues that in order to qualify for bridge aid, the bridge must be on an existing highway maintainable by the town. Because the bridge in question was not on a highway maintainable by the Town when it was constructed, and a highway adjoining the future bridge's site did not yet exist at the time of the Town's bridge aid petition, there was a "temporal disconnect" that precluded bridge aid in this case.
¶24 The Town responds that the County's interpretation of Wis. Stat. § 81.38 as precluding bridge aid where there is no pre-existing highway is in direct conflict with the statute's plain language, which requires funding as long as the bridge, "upon completion, is on a highway maintainable by the Town." At oral argument, the Town offered a new variation of the "upon completion" argument. While not burning its bridges by waiving its briefed "upon completion" argument, the Town at oral argument appeared to argue in the alternative that § 81.38 requires funding as long as the overall project contemplates an eventual connection of the bridge to a highway at some point down the road after the bridge's construction.[10]
¶25 While disagreeing about the meaning of Wis. Stat. § 81.38, the parties do not dispute that the frontage road to which the bridge was eventually connected was a highway maintained by the Town. However, it is also undisputed that, upon completion, the bridge was not on that highway. Rather, the bridge was completed in March 2005, but the extension of the frontage road connecting to the bridge did not occur until August 2005. Thus, under even the Town's "upon completion" interpretation of § 81.38, the bridge did not qualify for funding under the statute, because it was not "upon completion" on a highway maintainable by the Town.[11]
¶26 However, to address the Town's apparent alternative argument that as long as a bridge will eventually be connected to a highway, it should be funded, we will proceed to address the meaning of Wis. Stat. § 81.38's "on a highway maintainable by the town" language. For the reasons given below, we conclude that § 81.38 requires funding for only those bridges built on highways in existence at the time of a bridge's construction.
¶27 Turning first to the text of Wis. Stat. § 81.38, we observe that while the statutory language allows for the construction or repair of a "bridge on a highway maintainable by the town," making it clear that the bridge does not have to be preexisting for the town to request funding, it is unclear whether the "highway maintainable" must be preexisting where the bridge is to be constructed, or whether the bridge could be built before the "highway maintainable" exists under the statute.
¶28 Either interpretation is reasonable, and we therefore treat Wis.
Stat. § 81.38 as
ambiguous. UFE Inc., 201
¶29 Chapter 81 of the 2001-02 Wisconsin Statutes, of which Wis. Stat. § 81.38 is a part, is entitled "Town
Highways." The majority of the
surrounding statutory provisions in the chapter focus on highways. Consequently, the context of § 81.38
would suggest that the bridge aid statute is better understood as a subset of a
chapter addressing the construction, maintenance, and repair of town highways.
¶30 Going back to the earlier incarnations of the bridge aid statute,
we observe that in the nineteenth century, the 1858 version of the statute
described funding being appropriate for "necessary" bridges[12]
and was modified in 1866 to clarify that such necessity is related to the
bridge's location on a primary road. Specifically, the 1866 language
provided that taxes may be levied "for erecting or repairing any necessary
bridge or bridges upon the principally traveled thoroughfares in said
town," with the caveat that even if the road was not the principally
traveled thoroughfare[13]
for a particular town, the county could still appropriate bridge aid if the
bridge was necessary for the use and convenience of adjoining towns.[14] Wis. Stat. ch. 19, § 115 (1866)(emphasis added).
¶31 In
1879 the statute, renumbered as Wis. Stat. § 1319, was amended to make
funding mandatory rather than discretionary.
§ 1, ch. 126, Laws of 1879.
The amended statute
also used the word "highway" for the first time, providing that
whenever the cost to a town exceeded a certain property tax threshold
for the purpose of erecting or repairing any bridge or
bridges upon the principally traveled highway of such town; or when it shall be
made to appear that a bridge in any town is necessary for the use and convenience
of the adjoining towns, rather than the town in which it shall be situated, it
shall cause such sum to be levied upon the taxable property of the county as
will be sufficient to defray the expense of erecting or repairing the same. . . .
¶32 The
first time the language "on a highway maintainable by the town"
appeared in Wisconsin's bridge aid statutes was in 1923, when the statute was
rewritten to describe bridge aid as applying to the construction or repair of
"any bridge on a highway maintainable by the town" when the
town has paid its statutorily required share.
§ 87.01, ch. 108, Laws of 1923 (emphasis added). Since 1923, when the "highway"
language reappeared, more explicitly narrowing the scope of the statute, bridge
aid funding has continued to be expressly limited to funding for a bridge
"on a highway maintainable by the town." See
Section 81.38(1) referred to a "highway maintainable
by the town"; section 82.08(1)(2005-06) refers to a "highway maintained
by the town" (emphasis added). This
revision was part of broader revisions to both § 81.38 and to the town highway statutes in
general. See generally
2003
Town of
¶33 Other than Town of Grand Chute, there are no published cases
addressing Wis. Stat.
§ 81.38. Town of Grand Chute
has limited utility for our analysis because it primarily addresses the meaning
of "costs" in the statute; it does not address the meaning of the
statute's "on a highway" language.[16] Prior to Town of Grand Chute, no other
Wisconsin decision contained a substantial analysis of either § 81.38's
language or the comparable language in predecessor statutes describing bridges
eligible for county funding as being on highways maintainable by towns.[17]
¶34 Even though this is a case of first impression in a number of respects, we are not without guidance, however. It is clear from the emphasis on the necessary role of highways in Wis. Stat. § 81.38 and its predecessor statutes, and from the surrounding text of chapter 81 focusing on highway maintenance and funding, that the purpose of § 81.38 is not just cost sharing and cooperation between counties and towns in general, but rather, cost sharing in the specific context of bridges built upon maintainable highways. Much of the statutory history also indicates that the highways to which bridges must be connected in order to qualify for funding have historically been required to be highways that are essential to travel in the county, or are "well traveled" thoroughfares at the time of the bridge aid application.
¶35 This highway-focused purpose underlying Wis. Stat. § 81.38 helps provide a
predictable and certain basis for county determinations whether or not to fund
town bridges. Whereas, under the Town's
approach, counties might be required to fund bridges even if their eventual
connection to highways will not transpire for years, or may not ever occur, a
strict interpretation limiting funding requirements to bridges built upon
existing highways provides the clearer guidance required for ensuring
predictability and certainty in future cases.
Reading the language "on a highway maintainable by the town"
literally is in accord with our reading of
¶36 In its brief to this court, the County asks the most pertinent question in this case: "if there is no preexisting highway[,] how can a completed bridge be on a 'highway maintainable by a town?'" Answering its own rhetorical question, the County continues, "[t]here is a temporal disconnect occurring here; a highway can't be 'maintainable' until it is constructed." We agree with the County's analysis. In order for a bridge to be constructed or repaired on a highway "maintainable by the town" within the meaning of Wis. Stat. § 81.38(1), we conclude that the bridge must be constructed or repaired on an existing highway.
¶37 Having concluded that the language of Wis. Stat. § 81.38(1) limits county bridge aid requirements to bridges on existing highways maintainable by towns, we conclude that the bridge in this case did not meet that statutory criteria for funding. The parties do not dispute that in this case, when the Town's bridge aid petition was submitted, there was no highway maintainable by the Town already in existence that extended to the spot where the bridge would be built. In addition, the parties do not dispute that the bridge was not "on a highway maintainable by the town" when its construction was complete. Rather, even the Town concedes that the bridge was only 100 feet long, thus leaving a gap of over 100 feet between the railroad tracks and the nearest road to the east and leaving even more of an area between the tracks and the road on the west upon its completion.[19]
¶38 In a key concession at oral argument, the Town even acknowledged that it could have applied for funding to help fill that gap, thereby connecting the bridge to the road, but it failed to do so, leaving the gap between the bridge and highway unaddressed by the bridge aid petition.[20] In other words, the Town failed to request funding in its petition that would bridge the gap between the bridge and the highway, and that would, with reference to the highway, ensure that funding was allocated to help "take it to the bridge."[21]
¶39 The only description of the bridge's relationship to a road in the Town's petition was the description of the bridge as located 1,500 feet west of the nearest intersecting road. Although the letter accompanying the petition described the bridge construction as part of a broader plan to extend the frontage road, and the architectural plans submitted along with the petition described the bridge location in relation to the frontage road, there is no language in the petition explicitly describing the bridge as being built on or connecting to that road. It may be the case that it was the Town's intent to connect the bridge to the highway eventually, but Wis. Stat. § 81.38 does not set forth funding for future connections of a funded bridge to a highway after the bridge is built.
¶40 Thus, with (1) the petition describing funding for the bridge alone, not for the entire frontage road extension project; (2) the petition not requesting funding to connect the bridge to a highway, although the Town concedes it could have requested such funding; and (3) the bridge in fact not being connected to a highway maintainable by the Town upon the bridge's completion, it is clear that the Town's bridge falls outside the scope of Wis. Stat. § 81.38's requirements.
¶41 The Town has conceded that its petition for bridge aid was for funding for the bridge alone, and did not include a request for funding to help connect the bridge to a highway maintainable by the Town. Furthermore, no such highway extended to the bridge site either prior to the bridge's construction or at the time of the bridge's completion. Thus, under the Town's own interpretation of Wis. Stat. § 81.38 as requiring funding for a bridge that is on a highway maintainable by the Town "upon completion," the bridge did not qualify for funding.
IV
¶42 We conclude that the bridge at issue in this case was not a "bridge on a highway maintainable by the town" within the meaning of Wis. Stat. § 81.38 because the bridge aid petition did not request funding to help connect the bridge to a highway maintainable by the town or for the frontage road extension project in its entirety, because there was no existing highway extending to the planned bridge site at the time of the Town's petition, and because the bridge was still not connected to a highway maintainable by the Town upon completion. Section 81.38 requires funding for only those bridges built on highways in existence at the time of a bridge's construction. As such, the County appropriately denied funding for the bridge under § 81.38. We therefore reverse.
¶43 By the Court.—The decision of the court of appeals is reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion.
¶44 SHIRLEY S. ABRAHAMSON, C.J. (concurring). The majority opinion applies Wis. Stat. § 81.38 (2001-02)
according to its literal text, a well-accepted approach to statutory
interpretation. The Town of
¶45 I suggest that the chief of the legislative reference bureau
consider reporting this decision and Wis. Stat. § 82.08(1) (2005-06) to the law revision
committee. See
¶46 I join in the court's mandate but write separately for the reasons set forth.
¶47 PATIENCE DRAKE ROGGENSACK, J. (dissenting). I agree with the lead opinion that this case turns on the interpretation of the statutory phrase, "bridge on a highway maintainable by the town," found in Wis. Stat. § 81.38(1),[22] now Wis. Stat. § 82.08(1).[23] However, the lead opinion concludes that a highway must be constructed before the bridge is constructed in order for the bridge to come within the identified statutory phrase from § 81.38(1).[24]
¶48 In my view, the phrase, "bridge on a highway maintainable by the town," identifies a type of bridge by describing the relationship of the bridge to the highway of which it is, or will become, a part. The type of bridge that is "on a highway maintainable by the town" is distinguished from many other types of bridges referenced in the statutes that also are located on highways, but which highways are maintained by governmental entities other than a town, such as the state or another municipality. The phrase, "bridge on a highway maintainable by the town," has nothing to do with whether the bridge is constructed before or after the highway is constructed. Rather, if the bridge is of the type identified in Wis. Stat. § 81.38(1), the town may apply to the county of which the town is a part for assistance in constructing and maintaining such a bridge. If the county has not opted out of § 81.38(2), the county must pay its statutory share of the costs incurred.[25] Accordingly, I would affirm the decision of the court of appeals, and I dissent from the lead opinion.[26]
I.
BACKGROUND
¶49 The
facts relating to this controversy are not in dispute. The Town of
¶50 The
circuit court granted summary judgment to the Town, concluding that the County
was required to pay a portion of the bridge's construction, pursuant to Wis.
Stat. § 81.38(1) and (2). The
County appealed, and the court of appeals affirmed.
II.
DISCUSSION
A. Standard of Review
¶51 We
independently review whether summary judgment was properly granted, employing
the same procedure as the circuit court employed. Hoida, Inc. v. M&I Midstate Bank,
2006 WI 69, ¶15, 291 Wis. 2d 283, 717 N.W.2d 17. Statutory interpretation and application are
at the heart of the summary judgment decision in this case. They, too, present questions of law for our
independent review; however, we benefit from the reasoning of the court of
appeals and the circuit court. Marder
v. Bd. of Regents of the Univ. of
B. Interpretation
of
¶52 In
order to determine whether the County has a statutory obligation to contribute
to the Town's cost of bridge construction, we must interpret and apply Wis.
Stat. § 81.38(1).
1. General principles
¶53 "[S]tatutory interpretation 'begins with the language of the
statute. If the meaning of the statute
is plain, we ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit Court for
Dane County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting
Seider v. O'Connell, 2000 WI 76, ¶43,
236 Wis. 2d 211, 612 N.W.2d 659). Plain
meaning may be ascertained not only from the words employed in the statute, but
also from statutory context.
¶54 If a statute is "capable of being
understood by reasonably well-informed persons in two or more senses[,]"
then the statute is ambiguous, and we may consult extrinsic sources to discern
its meaning. Kalal, 271
¶55 The
lead opinion concludes that the Town is not due a contribution from the County
for the Town's construction of the bridge because this bridge does not fall
within the phrase, "bridge on a highway maintainable by the
town."[31] The lead opinion reaches this conclusion
because
2. Contextual assessment
¶56 The
statutory phrase on which our determination rests is: "bridge on a highway maintainable
by the town." Wisconsin Stat. § 81.38(1) provided in
relevant part:
When any town has voted to construct or repair any
culvert or bridge on a highway maintainable by the town, and has provided for
such portion of the cost of such construction or repair as is required by this
section, the town board shall file a petition with the county board setting
forth said facts and the location of the culvert or bridge; and the county
board . . . shall thereupon appropriate
such sum as will, with the money provided by the town, be sufficient to defray
the expense of constructing or repairing such culvert or bridge . . . .
The statutory phrase, "on a highway maintainable by the
town," modifies the word, "bridge," in § 81.38(1). This prepositional phrase identifies a
particular type of bridge by describing the location of the bridge.
¶57 Many
similar phrases in other sections of the statutes identify other types of
bridges, also through the use of a prepositional phrase that describes the
location of the bridge in relation to which entity is responsible for
maintaining the highway of which the bridge is, or will become, a part. For example, "a bridge which is not on
the state trunk highway system or on marked routes of the state trunk highway
system designated as connecting highways" are the phrases employed to
define a "local bridge" in Wis. Stat. § 84.18(2)(d)
(2005-06). A bridge "not on the
state trunk highway system" is the phrase employed in Wis. Stat.
§ 84.10 (2005-06) to address the maintenance and operation of one specific
type of bridge that is not located on state trunk highways. In addition, "every highway bridge on a
city, village, or town boundary shall be repaired and maintained by any
adjoining municipality in which the bridge is located" is the phrase used
in Wis. Stat. § 82.23 (2005-06) to identify municipal line bridges. Further, "a bridge on a highway in this
state which crosses waterways, other topographical barriers, other highways or
railroads" is the identifying phrase in Wis. Stat. § 84.17(1)(b)
(2005-06) that describes the type of bridge for which certain inspections are
required by a particular entity.[33] None of the statutes condition the
identification of the type of bridge described on whether the bridge was
constructed before or after the highway that establishes the location of the
bridge; yet, all of the statutes share similar syntax in that they employ a
prepositional phrase to identify a type of bridge by its relationship to the
highway of which it is, or will become, a part.
¶58 In
Village of Bloomer v. Town of Bloomer, 128
¶59 The
Town did not argue that the bridge was not of the type described in the
statute, but rather, it challenged the statute that apportioned payment for the
bridge on constitutional grounds.
¶60 Throughout
Village of Bloomer, we reasoned by analogy to other types of bridges,
all of which were identified by the locations of bridges in relationship to the
highways on which they had been or would be constructed. That reasoning is directly applicable here
where the plain meaning of the statutory words employed in Wis. Stat.
§ 81.38 identify the type of bridge that is subject to cost-sharing
between a town and a county as one that is "on a highway maintainable by
the town." There is no dispute that
3. Statutory
purpose
¶61 We also interpret the words chosen by the legislature in light of
the purpose for which the statute was enacted.
GTE, 176
¶62 The
court of appeals reasoned that when a town votes to repair or to construct a
bridge and petitions the county of which the town is a part for aid, if the
town has raised funds sufficient to meet the town's statutory obligation in
that regard, the county is obligated "to pay for one-half the cost of
constructing or repairing the town's bridge."
¶63 The
lead opinion's interpretation of Wis. Stat. § 81.38 contravenes the
legislative purpose of cost-sharing that underlies § 81.38 because it
permits the County to avoid its statutory obligation to contribute to the Town
for the construction of the bridge.
¶64 And
query, now that the bridge has been constructed and has joined Ski Lane and the
West Beltline Highway frontage road, under the lead opinion's reasoning, has
Dane County no statutory obligation to assist the Town in maintaining the
bridge? Surely the lead opinion would
not question that the County does have a statutory maintenance obligation for
this bridge.
¶65 Whether
the bridge is constructed first or whether the highway is constructed first, in
either case, the bridge becomes part of a contiguous highway within the Town
and the County. The plain meaning of the
words chosen by the legislature requires Dane County to contribute its
statutory share of the cost the Town of Madison incurred in constructing the
bridge that connected West Beltline Highway frontage road to Ski Lane, thereby
creating a contiguous highway, which highway continues to be maintainable by
the Town.
C. The
Lead Opinion's Secondary Rationale
¶66 As
a secondary rational, the lead opinion concludes that, in addition to the
bridge not being connected physically to an existing highway from the moment of
its construction, the Town's petition was properly denied because the Town did
not request funding to extend the highway to the bridge.[34] The lead opinion's rationale for this
conclusion escapes me.
¶67 Is
the lead opinion really saying that if the Town had asked for more money than
it did, its request for bridge funding would have been granted? That appears to be the case because the lead
opinion faults the Town for not applying for funding to extend the highway to
the constructed bridge.[35] However, the Town's counsel acted prudently
by not seeking such funding. I note that
the gap between where the bridge was to be constructed and the then existing
highway was 200 feet.[36] The statute provides for cost-sharing for
only a 100-foot highway extension.
¶68 It
is telling that the lead opinion characterizes the funding for the highway
extension as funding to "help" connect the bridge to a highway
maintainable by the Town.[38] With a 200-foot gap between the bridge and
the highway, County funding would not have caused the highway to reach all the
way to where the bridge was to be built. The lead opinion's suggestion would leave the
Town with a 100-foot gap between the yet-to-be-constructed bridge and the
highway.[39] The lead opinion's reasoning in this regard
underscores that, despite its protestations to the contrary, it considers the
word "on" within Wis. Stat. § 81.38 to be dispositive of this
case. That is, under the lead opinion's
interpretation of § 81.38, the bridge must be constructed after the
highway is complete so the bridge can physically touch the highway
immediately upon the bridge's construction.
The lead opinion's statutory interpretation defeats the cost-sharing
mandate of Wis. Stat. § 81.38(1) and therefore it cannot be the correct
interpretation of the statute.
III.
CONCLUSION
¶69 The phrase, "bridge on a highway maintainable by the town," identifies a type of bridge by describing the relationship of the bridge to the highway of which it is, or will become, a part. The type of bridge that is "on a highway maintainable by the town" is distinguished from many other types of bridges referenced in the statutes that also are located on highways, but which highways are maintained by governmental entities other than a town, such as the state or another municipality. The phrase, "bridge on a highway maintainable by the town," has nothing to do with whether the bridge was constructed before or after the highway was constructed. Rather, if the bridge is of the type identified in Wis. Stat. § 81.38(1), the town may apply to the county of which the town is a part for assistance in maintaining or constructing such a bridge. If the county has not opted out of § 81.38(2), the county must pay its statutory share of the costs incurred.
¶70 Accordingly, I would affirm the decision of the court of appeals, and I dissent from the lead opinion.
¶71 I
am authorized to state that Justices DAVID T. PROSSER and ANNETTE KINGSLAND
ZIEGLER join this dissent.
[1] Town of
[2] Effective January 1,
2005, Wis. Stat. § 81.38(1),
entitled "Town bridges or culverts:
construction and repair; county aid," was revised and renumbered as
Wis. Stat. § 82.08(1). As we will explain, the revisions made by the
session law amending the statute, 2003
[3] The petition also included
requests for financial assistance for two culvert projects. Unlike the funds requested for the bridge,
the culvert funds requested were approved and included in
[4] The estimated cost of
construction was $300,000. The Town
received a grant for $150,000 and sought reimbursement for one-half of the
remaining $150,000 cost. The other half was obtained through
a grant from the U.S. Department of Commerce's Economic Development
Administration (EDA), an agency of the United States Department of Commerce
authorized to effectuate the provisions of the Public Works and Economic
Development Act, 42 U.S.C. §§ 3121-3226 (2004), and the Act's purpose of
enabling localities and citizens to participate more fully in American
prosperity by increasing economic growth through improved and expanded public
infrastructure. See Afton
Alps, Inc. v.
[5]
[6] Notably, the County
admitted the Town's allegation that the overpass bridge at issue "is
located on the frontage road west of
[7] As the preceding description of uncontested facts sets forth, this is an inaccurate description of the bridge, which did not connect the roads; the roads remained unconnected after the bridge was completed, as they were separated from the bridge by right of way or other non-highway land. The roads were not connected until the road construction extending the roads was completed several months after the bridge's construction.
[8] Dissenting from the court of
appeals decision in this case, Judge Dykman similarly stated, "the plain
meaning of that statute is that a chasm is not a highway, and certainly not a
highway maintainable by the Town." Town
of
[9] Nor do the parties dispute the
meaning of "on," although an interesting discrepancy about the
meaning of "on" arose in the oral arguments of two attorneys arguing
against the town: Assistant Corporate
Counsel Gary Rehfeldt, arguing on behalf of
[10] In other words, the Town described the bridge as essentially serving as a bridge to the future, part of a broader economic development plan that would continue beyond the construction of the bridge. The County, in contrast, has dubbed the bridge as a "bridge to nowhere," because when it was finished being built, it was connected to unpaved land, not to the type of highway required for county funding under Wis. Stat. § 81.38.
[11] The dissent portrays
our opinion as "reach[ing] this conclusion because
[12] Under the 1858 statute, county
supervisors were statutorily authorized to levy taxes to defray the costs of
building or repairing bridges "[w]henever it shall
appear . . . any one of the towns in such county would be
immeasurably burthened by erecting or repairing any necessary bridge or bridges
in said town."
[13] As opposed to a "road less traveled."
[14] The 1866 statute, as well as later versions, also contained limitations on bridge aid based on the initial cost of a project in proportion to a town's taxable property; such statutory language and related amendments are not pertinent to our analysis.
[15] See § 1, ch. 187, Laws of 1885.
[16] Furthermore, Town of Grand
Chute's description of the general cost-sharing purpose of Wis. Stat.
§ 81.38 is somewhat incomplete. The
court described that purpose as "to have counties absorb half the cost of
constructing or repairing bridges," and explained that § 81.38(2)
"essentially obligates the county to pay for one-half the cost of
constructing or repairing the town's bridge." Town of Grand Chute v. Outagamie County,
2004 WI App 35, ¶¶2, 18, 269 Wis. 2d 657, 676 N.W.2d 540. We clarify here that counties do not
literally pay for the bridges, but rather they impose tax levies to fund the
bridges.
The dissent misses this point in its discussion of Town of Grand Chute, which it describes as setting forth a broader cost-sharing legislative purpose that our opinion today somehow contravenes. See dissenting op., ¶¶61-63. The dissent's understanding of the legislature's purpose is flawed, however, as the dissent fails to recognize that counties have no obligation to assist with bridge construction where § 81.38(2) does not apply, and that § 81.38(2) applies to require funding only for those bridges built on highways maintainable by towns, not to all bridge construction without qualification.
[17] However, as we have described,
this court interpreted the 1892 version of the statute, which was devoid
of highway or thoroughfare language, as nonetheless precluding a county's
denial of funding for bridges on the basis that the bridges "are not upon
public highways." State ex
[18] The dissent attempts to bridge the gap for the Town by claiming that "[m]any similar phrases in other sections of the statutes" also employ prepositional phrases similar to "on a highway maintainable by the town" to identify bridges in terms of their relationships to highways that they are a part of "or will become" a part of. Dissent, ¶57. However, while naming eight other statutes that mention bridges, the dissent fails to cite a single statute that merges the present and future tenses in the manner the dissent urges, indicating that a bridge's identity may be determined by a future condition that does not yet exist, defining things in terms of what may be, not in terms of what is.
[19] As previously noted, the court of appeals inaccurately described the proposed bridge as "connect[ing] previously unconnected portions of existing highways." See supra, ¶13 & n. 7. We note here that the circuit court's description of the Town's proposal as a proposal "to use an existing state right-of-way to connect the two dead ends," and its description of that connection as "requir[ing] the construction of a railroad overpass bridge that would span both the railroad line and the right-of-way," are clearly erroneous for the same reason. The record establishes, and the parties agree, that the bridge itself would not traverse the entirety of the right-of-way, but would only cross a length of 100 feet across the railroad tracks, leaving a large section of unpaved right-of-way intact to the west until a highway was later extended across that land. Further, at oral argument, when the attorney for the Town was asked whether the right-of-way area to the west of the railroad was a highway maintainable by the Town, he conceded it was not, because it was vacant land without pavement at the time of the bridge's construction.
[20]
[21] See
Charles Donelan, James Brown: 1933-2006, 21
[22] Effective January 1,
2005,
[23]
[24]
[25]
[26] The lead opinion,
coupled with the concurrence's vote to reverse the court of appeals, decides
the outcome in this dispute between the Town of
[27] On June 10, 2004, the Town petitioned the County for a contribution to the cost of bridge construction.
[28] On September 9, 2004, the County sent a letter refusing to contribute to the cost of the bridge's construction.
[29] The construction of the bridge was completed in March 2005, and the connection of the highway to both sides of the bridge was completed in August 2005.
[30] The statutory obligation for payment by a county is now found at Wis. Stat. § 82.08(3).
[31] Lead op., ¶4.
[32]
[33] There are other statutes, too numerous to mention, that identify other types of bridges and address inspection, maintenance or construction. See, e.g., Wis. Stat. § 83.15 (2005-06) (county aid for state line bridges); Wis. Stat. § 84.12 (2005-06) (interstate bridges); Wis. Stat. § 84.14 (2005-06) (bridge construction); Wis. Stat. § 84.15(1) (2005-06) (maintenance of intrastate bridges).
[34] Lead op., ¶¶38 & n.20, 40.
[35]
[36]
[37] Nevertheless, the lead
opinion suggests otherwise, eschewing cogent reasoning for opportunities to
make fey references to James Brown by stating that the "Town failed to
request funding in its petition that would bridge the gap between the bridge
and the highway, and . . . ensure that funding was
allocated to help 'take it to the bridge.'"
[38]
[39]