Op. Atty. Gen. 379c-8c ( 1998 )

ROADS: TOWN LINE: MAINTENANCE: County boards may determine division of
maintenance responsibility for town line road established prior to enactment of authorizing
statute Op. Atty. Gen. 379C~8(c). Septcmber lB. 1951 superseded Minn. Stat. § 164.12 (1996).
379C-8(c)
November 5, 1998
David J. Hauser
Otter Tail County Attomey
Otter Tail County Courthouse
Fergus Falls, MN 56537
Dear Mr. Hauser:
In your letter you set forth substantially the``following:
FACTS
Prior to 1951, there was a six-mile common town road on the boundary
between Osear Township in Otter Tail County and Akron Township in Wiikin
County running along the county line. ln 1951, the counties took over the
northerly five miles of the road. Oscar Township, Otter Tail County, which had
been originally responsible for maintaining the three miles of the road has
maintained the one mile remaining since 1951 but feels that Akron Township
should also be responsible to share the expense.
In 1951 the Attomey General rendered the opinion that. pursuant to an
agreement entered between the two towns in 1835. Oscar Townsliip remained
entirely responsible for maintaining the remaining mile of town road originally
allocated to it. {_‘-;"- Atty. Gen. 379C - SC. September13,1951. However. Minn.
Stat. § 164.12. enacted in 1959. now provides that "when part of a town line road
is taken over as a county highway, the town boards are to divide responsibility for
the remaining town road equally between them to the extent possible."
You then ask substantially the t``ollowing:
QUESTION
ln these circumstances when counties have taken over control and maintenance ot``a
portion ot``a former township road on a town linc. who is responsible i``or maintaining the portion
of the road not taken over‘?
David J. I-Iauser
Page 2
OPINION
As noted above, Minn. Stat. § 16¢1.12, subd. 5 requires the neighboring towns, in such
circumstances to enter an agreement when a portion of the road is taken over dividing
responsibility between them. Furthermore, subdivision 6 of that section provides:
When the town boards cannot agree upon a division as provided in
subdivision 2 or subdivision 5, or upon the petition of either town board when a
division previously agreed upon has proved to be inequitable, the county board, or
where the road is on a county line the county boards of the counties concerned,
shall determine the proper division of responsibility
In our view this provision applies to the mile of road lying between Oscar and Akron
'I``ownships, described in the facts presented
it has been argued that. inasmuch as Minn. Stat. § 164.12 did not exist when the counties
took ever five miles of the road in 1951, its enactment in 1959 can have no effect upon the
allocation of maintenance responsibility under the pre-existing 1885 agreement. lt is true that
statutes enacted by the legislature will not be construed to be “retroactive unless clearly and
manifestly so intended by the legislature." l\/linn. Stat. § 645.21. Because of this presumption
and constitutional prohibitions against impairment the obligations of contracts. statutes are often
held inapplicable to contracts in existence at the time of their enactment See e.g., Jacobsen v.
.»\nheuser Bush. lnc. 392 N.W.Qd 868 (Minn. 1986). Such is not always the case, however.
especially in cases involving agreements between units ot`` local government. As creatures of the
state. local governments and their contractual relationships with one another do not enjoy the
same constitutional protections from legislative modification as private persons See e.a., l:_a
Crescent Township v. Citv ot``l.a Crescent. 515 N.W.Zd 608 (Minn. Ct. App. 1994), wherein the
court upheld application ol``a new statute permitting cities to annex certain property by ordinance.
notwithstanding a pre-existing agreement between the city and town that arguably prohibited
such an annexation
David J. l-Iauser
Page 3
In the instant case it seems clear that the legislature intended Minn. Stat. § 164.12,
subd. 5 to apply to previously existing maintenance agreements The plain wording of
subdivision 6 speaks retrospectively in providing for resolution by the county boards “when a
division previously agreed upon has proved inequitable, . . . ” (Em_phasis added). At the time it
took effect in 1959, that language could only have applied to agreements entered into prior tc its
enactment Furtherrnore, the remedial nature of the provision argues in favor of its application to
pre-existing divisions of responsibility C_f. Olsen v. Special School District #1, 427 N.W.2d 707
(Minn. Ct. App. 1988) (repeal of damage discount law given retroactive effect due, in part, to
remedial nature of legislation). We can perceive no reason why the legislature would have
intended to perpetuate existing “inequitable” divisions of responsibility
Thus it is our view that, while it is presently the responsibility of OScar Township to
maintain the one mile of town line road in question, the Town may attempt to negotiate a
modification of the 1885 agreement or may seek a reapportionment of responsibilities upon a
determination by the county boards of Otter Tail and Wilkin counties that the previously agreed
division has proved inequitable
Op. Atty. Gen. 379C-8-C, September 18'. 1951 is superseded to the extent inconsistent
herewith.
Very truly yours.
HUBERT H. HUMPI-IR_E‘{ 111
Attorney General
KENNE'l``l-l E. RASCHKE. JR.
Assistant Attomey Gcneral
.-\G:GZS l 3 \'l