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Bridges and Highways
Criminal Law
Municipal Corporations
Public Officers
Superintendent of Highways
Town Supervisors -
 

Town may be proceeded against criminally,
under common law, for failure to keep
highways passable; penalty, in case of
conviction, is given by Section 4635, Stats

Willful neglect of town supervisors to keep
highways in repair and refusal to appoint
superintendent of highways are violations
of Section 4550, Stats.

August 9, 1921.

HONORABLE J. HENRY BENNETT,

State Senator, Viroqua, Wisconsin

You say, in a letter dated August 1, 1921,
that some of the public highways in your
county are sadly in need of repair and have
been for years; that the condition renders
travel thereon dangerous and difficult and
for some classes of traffic utterly
impassable; that they could be repaired at a
reasonable cost and rendered suitable for
travel; that it is the duty of the several
towns in which these highways are situated to
keep them fit for public travel; that town,
boards arbitrarily refuse to make such needed
repairs, notwithstanding the fact that there
are abundant funds in the treasuries
available therefor, that some town boards
have failed and refused to appoint a
superintendent of highways; and that you have
advised criminal prosecutions of the towns
for permitting and maintaining a nuisance
through such failure to make highway repairs,
and against town  officials for malfeasance.
You state, further:

     The question arises as to the penalty
     and under what statute the prosecution
     should be instituted . . . .

And you request the attorney general
to give you his

     opinion of the nature of the prosecution
     and the penalty to be imposed, the
     particular statute, if any, violated,
     and what penalty was imposed
     at common law.

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It is the duty of towns to maintain the
ordinary public highways therein and the
bridges thereon in suitable condition for
travel, and for failure to discharge
said duty the towns may be proceeded against
criminally, under the common law.

The Town of Saukville v. State, 69 Wis. 178.

This duty on the part of the town is
discharged under the authority and by the
direction of the board of supervisors.
Sections 1223, 1229, 1230, Stats.

The proper procedure against the town is
fairly well set out in the supreme court
decision just cited, and in an opinion of the
attorney general rendered December 17, 1906.

See Op. Atty. Gen. for 1908, 902.

The statutory provision on the subject is in
Section 4734, Stats., which says:

     Whenever any corporation, private or
     municipal which shall have been indicted
     or informed against under the common law
     or under any statute of this state shall
     fail to appear after notice of such
     indictment or information, given and
     served by leaving a true copy * * *
     with the officers or persons upon
     whom a summons in a civil action
     against such corporation may be
     served, and twenty days shall have
     elapsed thereafter, the default of
     such corporation may be recorded,
     and the charges in such indictment
     or information shall be taken as
     true and judgment shall be
     rendered accordingly.

Of course, if a plea or answer
is interposed, that makes an
issue to be disposed of by the court.

It is thought that the statute just quoted
covers every from of corporation.

A town is a corporation.

     Each organized town is
     a body corporate.

Section 60.01, Stats.

Therefore, an information may be lodged
against a town both by virtue of the common
law and of the provisions of Section 4734.

None of the statutes referred to thus far
impose any penalty in such a case, and you
are particularly concerned to know what
penalty, if any, the law imposes.

It is the opinion of this office that
the penalty which may be imposed in case of a
conviction or a judgment by default is
provided by Section 4635, Stats.

     Any person who shall be convicted of any
     offense the punishment of which is not
     prescribed by any statute of this state
     shall be punished only by imprisonment
     in the county jail not more than one
     year or by fine not exceeding two
     hundred and fifty dollars.

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     60.01(12)

     The word "person" may extend and be
     applied to bodies politic and corporate
     as well as to individuals.

     Section 4971, Stats.

I have not examined the authorities to
determine the common law punishment on
indictment of a body politic or corporation,
for failure to maintain highways, and
I believe it is immaterial what that
punishment was, because the punishment
provided by Section 4635 covers our case,
and the common law punishments
are probably prohibited by Section 4634.

It is my opinion that refusal or willful
neglect on the part of the supervisors of a
town to appoint a superintendent of highways
constitutes malfeasance in office and is
punishable under Section 4550.

The statutes declare:

     It shall be the duty of each board
     of supervisors:

     (1)  To appoint some competent person,
          to superintend under their
          direction, the construction and
          repair of highways and bridges
          within the town and cause to
          be removed all obstructions
          therefrom.

     Section 1223, Stats.

     1.   The town supervisors shall appoint
          and fix the Compensation of a
          competent person, or more than
          one, to, superintend the
          construction and repair of all
          highways and bridges in the town,
          under their general supervision
          and direction.

          Such person shall be designated
          as superintendent of highways
          of the town; . .

     Section 1229, Stats.

     1.   It shall be the duty of the town
          superintendent of highways

          (a)  To supervise the construction
               and maintenance of all roads,
               bridges, and culverts together
               with their appertaining
               structures on all highways,
               required by law to be
               maintained by the town.

          (b)  To keep the said highways
               passable at all seasons.

          (c)  To perform such other duties
               in connection with highways as
               the town supervisors may
               designate him to perform.

     Section 1230.

These statutes impose imperative duties upon
the officers of the town, and. their willful
failure to discharge those duties constitutes
malfeasance or nonfeasance in office and
renders them liable to punishment therefor.

EEB

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