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COURT OF APPEALS DECISION DATED AND RELEASED February 20, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2800-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DANIEL HALEY,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Chippewa County:
THOMAS J. SAZAMA, Judge. Affirmed.
MYSE, J. Daniel Haley appeals a
summary judgment finding him guilty of operating an unregistered motor vehicle
on a public street in violation of § 341.04(1), Stats., and operating a motor vehicle not properly equipped
upon a public highway in violation of Wis.
Admin. Code § MVD 5.06 (December 1989).[1] Haley contends that the trial court erred
when it granted summary judgment because the Kawasaki Mule 2010, which he was
operating on the public streets of the City of Chippewa Falls: (1) is not a
motor vehicle as defined by ch. 341, Stats.;
(2) is exempt from registration as road machinery under the provisions of §
341.05(16), Stats., and (3) was
authorized to be driven on the highway because it had a slow moving vehicle
emblem attached to it. Because this
court concludes that the Kawasaki Mule is a motor vehicle as defined by ch.
341, that it is not a piece of road machinery, and that the attachment of a
slow moving vehicle emblem does not authorize an otherwise unauthorized vehicle
to be operated on the public highways, the judgment is affirmed.
Haley operates Haley
Construction Company located in Chippewa Falls. Haley purchased a Kawasaki Mule for the purported purpose of
utilizing it for his construction business.
The Kawasaki Mule is self-propelled, has a bench-type seat upon which
passengers are transported and a bed in the rear in which things may be hauled. The Kawasaki Mule is capable of hauling
heavy loads and is unable to achieve speeds in excess of twenty-five miles per
hour. It was designed for off‑highway
use and is not equipped with parking lamps, directional signals, backup lamps,
windshield wipers, mirrors or speed indicators. At the time of purchase, Haley attempted to register the motor
vehicle but the DMV refused to register it pursuant to § 341.10, Stats.
Haley was operating the
vehicle on a public street in Chippewa Falls transporting a single piece of
metal conduit in the rear of the vehicle from a hardware store to his home when
a police officer stopped him. The
officer issued Haley a citation, and the district attorney later filed a
complaint alleging that Haley operated an unregistered motor vehicle on a
public street contrary to § 341.04(1), Stats.,
and that he operated a motor vehicle that was not properly equipped on a public
highway contrary to Wis. Admin. Code
§ MVD 5.06. Haley filed a motion to
dismiss and the State filed a motion for summary judgment. After two hearings, the trial court denied
Haley's motion to dismiss and granted the State's motion for summary judgment.
This court reviews a
grant of summary judgment de novo, applying the same standards employed by the
trial court. Green Spring Farms
v. Kersten, 136 Wis.2d 304, 316-17, 401 N.W.2d 816, 820 (1987). Summary judgment is appropriate where the
facts as to a particular issue are undisputed and only a question of law
remains. Krause v. Massachusetts
Bay Ins. Co., 161 Wis.2d 711, 714, 468 N.W.2d 755, 756 (Ct. App.
1991). Each of the issues Haley raises
requires the application of a statute to undisputed facts. Therefore, this court reviews the issues
without deference to the trial court's determination. State v. Williams, 104 Wis.2d 15, 21-22, 310 N.W.2d
601, 604-05 (1981).
Haley was charged with
violating § 341.04, Stats., which
provides:
It is
unlawful for any person to operate or for an owner to consent to being operated
on any highway of this state any motor vehicle, mobile home, trailer or
semitrailer or any other vehicle for which a registration fee is specifically
prescribed unless at the time of operation the vehicle in question is either
registered in this state, or, except for registration under s. 341.30 or
341.305, ... or is exempt from registration.
Under the clear and
unambiguous language, no motor vehicle may be operated upon a highway unless it
is registered or exempt from registration.
Haley concedes that the vehicle is not registered despite his attempts
to register it with the DMV. However,
Haley contends that a Kawasaki Mule is not a motor vehicle as defined by ch.
341, Stats. Chapter 341 adopts the definition of motor
vehicle set forth in § 340.01(35), Stats. See § 341.01, Stats. The definition
in § 340.01(35) provides:
"Motor
vehicle" means a vehicle including a combination of 2 or more vehicles or
an articulated vehicle, which is self-propelled, except a vehicle operated
exclusively on a rail. "Motor
vehicle" includes, without limitation, a commercial motor vehicle or a
vehicle which is propelled by electric power obtained from overhead trolley
wires but not operated on rails. A snowmobile
and all-terrain vehicle shall only be considered motor vehicles for purposes
made specifically applicable by statute.
This
court concludes that the Kawasaki Mule is a motor vehicle as defined in
§ 340.01(35). The Kawasaki Mule is
a self-propelled vehicle that does not operate exclusively on rail. As such, it is specifically encompassed
within the definition of motor vehicle.
Haley next contends that
the vehicle was exempt from registration as a piece of road machinery under §
341.05(16), Stats. The definition of road machinery is found in
§ 340.01(52), Stats., which
provides:
"Road
machinery" means a piece of mobile machinery or equipment ... such as
ditch digging apparatus, power shovels, drag lines and earth-moving equipment,
or a piece of road construction or maintenance machinery, such as asphalt
spreaders, bituminous mixers, bucket loaders, ditchers, leveling graders,
finishing machines, motor graders, paving mixers, road rollers, scarifiers,
gravel crushers, screening plants, scrapers, tractors, earth movers, front-or
rear-end loaders, conveyors, road pavers, or construction shacks. The foregoing enumeration is intended to be
illustrative and does exclude other similar vehicles which are within the
general terms of this subsection, whether used for road construction and
maintenance or not, which are not designed or used primarily for transportation
of persons or property and only incidentally operated or moved upon a highway.
Haley contends that he
intended to use the Kawasaki Mule in his construction business. This argument assumes that Haley's
subjective state of mind determines whether this vehicle qualifies as road
machinery. The vehicle's status is determined
by the definition in the statute, not by the subjective intent of the owner. The vehicle is road machinery only if it
meets the definition as provided by law.
Not only is the Kawasaki Mule greatly dissimilar from the illustrative
types of road machinery set forth in the statute, the statute specifically
provides that vehicles that are designed or used primarily for transportation
of persons or property are not within the definition of road machinery. The Kawasaki Mule specifically fits the
statutory language because its primary purpose is to carry people and
property. This court therefore
concludes that the Kawasaki Mule is not a piece of road machinery as defined by
§ 340.01(52), Stats.,
notwithstanding whatever intent Haley may have had.
Finally, Haley contends
that § 347.245(1), Stats.,
authorizes the operation of this vehicle on the highways as long as it is
marked with a slow moving vehicle emblem.
Section 347.245(1) provides:
[N]o
person may operate on a highway, day or night, any vehicle or equipment,
animal-drawn vehicle, or any other machinery, including all road machinery,
that usually travels at speeds less than 25 miles per hour ... unless there is
displayed on the most practicable visible rear area of the vehicle or
combination of vehicles, a slow moving vehicle (SMV) emblem ....
Haley
argues that because the Kawasaki Mule is incapable of going in excess of
twenty-five miles per hour and was marked with a SMV emblem, he is authorized
under this statute to operate the vehicle on the public highways. Nothing in the applicable statute, however,
authorizes the operation of the vehicle.
The statute requires an additional piece of equipment for slow moving
vehicles and prohibits slow moving vehicles from operating on the roadways
without the proper emblem being displayed.
It does not authorize an otherwise unregistered vehicle to be operated
on the roadway because a SMV emblem has been affixed.
Based on the foregoing,
this court concludes that the trial court properly granted summary
judgment. Therefore, the judgment is
affirmed.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.