“Acting together” does not mean town boards must act as single entity on petition for road discontinuance

by Victoria Heldt

Dawson v. Town of Jackson, Town of Cedarburg
(Wisconsin Supreme Court, July 19, 2011)

Dale Dawson, Gudrun Dawson, and Edward Thomas (the Dawsons) are the owners of property that borders a half-mile portion of Wausaukee Road, a town line highway that lies on and across the municipal boundary line between the towns of Cedarburg and Jackson.  The Dawsons requested that a half-mile portion of Wausaukee Road (which comes to a dead end stop and is surrounded by their property) be discontinued.  In order to discontinue a highway on a line between two towns, the parties must submit an application describing the area of the highway and, upon completion of the application, “the governing bodies of the municipalities, acting together, shall proceed under ss. 82.10 to 82.13 (Wis. Stat. § 82.21 (2)).” (emphasis added).  The Dawsons submitted a joint application to the boards of Jackson and Cedarburg in addition to a letter containing additional discussion of statutory requirements.  In 2008, the two boards held a joint meeting at which all five Jackson board members were present and three of five Cedarburg board members were present.  The boards voted separately with all five Jackson board members voting in favor of discontinuing the road and the three Cedarburg members voting in opposition.

Subsequent to the hearing, Jackson issued an order to vacate the road, but Cedarburg declined to do the same.  When Lannon Stone Products, Inc. placed a sign on the road informing citizens of the closure, Cedarburg issued two citations to the corporation for “erecting a prohibited sign on streets” and for “public nuisance-obstruct/tend to obstruct street.”  The Dawsons sought a declaratory judgment arguing that the two boards “acted together” when they took a vote and that, since the aggregate vote was 5-3, the road should be discontinued.  The circuit court ruled in favor of the Dawsons, and the Wisconsin Court of Appeals affirmed.

This case turns on the interpretation of the phrase “acting together.”  The Court looked at whether that phrase means the two boards should act as one body and count their votes in the aggregate, or whether it means they must vote as separate entities when deciding to discontinue a highway.  The Court first looked to the context in which the phrase “acting together” appeared.  The statute specified that the two governing bodies should act together to “proceed under ss. 82.10 to 82.13.”  These sections mandate that the boards must provide notice requirements after they receive the application, must personally examine the highway, and must record any decision made with the register of deeds in each county.  The Court noted that the two boards would not physically do any of these three acts at the same time or at the same location.  The context of the phrase supported a non-literal interpretation of “acting together,” and suggested that the phrase simply means the two bodies should come together and cooperate in the matter.

The Court also acknowledged Cedarburg’s example of a similar statute (Wis. Stat. §83.42 (5)) which governs the modification of rustic roads.  It reads that, in order for a road to be designated as a rustic road or withdrawn from the rustic road system, approval must be given by “the governing bodies of all affected municipalities.”  This language suggests that the legislature envisioned the two governing bodies voting and approving of a decision separately.  However, the Court also noted that the statute governing roads bordering two towns is not as clear cut as the one governing rustic roads, so it does not completely solve the problem.

The Court looked next to the history of the statute, tracing its roots back to 1849.  The original versions of the statue hinted at a non-literal translation of “acting together” with phrases such as “each town shall have all the rights and be subject to all the liabilities, in relation to the part of such highway to be made or repaired by such town, as if the same were wholly located in such town.”  It also described the process in which the boards were to proceed using a plural “they,” suggesting that two separate bodies were to weigh in on the discontinuation of a road.  The Court also pointed out that interpreting the phrase “acting together” in a literal sense would undermine the independence and autonomy of municipalities.  In addition, it would risk the event of an unjust vote if one board had more members than the other.

After making its case, the Court reversed the appellate court’s decision and ruled that the phrase “acting together” means only that the two boards must come together and cooperate to resolve an application for the discontinuance of a road.

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