Opinion No. Oag 99-78, (1978) ( 1978 )

ROBERT RUSCH, District Attorney, Taylor County

You request my opinion whether a county highway commissioner, in a county which has a contract with the state to perform maintenance on state trunk highways, has authority to close a state trunk highway in case of an emergency caused by a bridge washing out, fire, tornado or extraordinary snow conditions.

I am of the opinion that such commissioner does have authority to temporarily close a state trunk highway and to erect barricades in connection with such closure. See 47 Op. Att'y Gen. 82 (1958), wherein it was stated that sec. 86.06 (1), Stats., gave highway maintenance personnel authority to hold up and reroute traffic where a highway was impassable or unsafe for travel.

Section 86.06 (1), Stats., provides:

"Whenever any highway is impassable or unsafe for travel or during the construction or repair of any such highway and until it is ready for traffic the authorities in charge of the maintenance or construction thereof may keep it closed by maintaining barriers at each end of the closed portion. The barriers shall be of such material and construction and so placed as to indicate that the highway is closed and shall be lighted at night."

In Fenske v. Kramp Construction Co., 207 Wis. 397, 401,241 N.W. 349 (1932), it was held that under then sec. 82.04 (6), Stats. (1929), both the county highway commissioner and the contractor had discretion "to stop travel on any highway in process of construction or repair, by posting notices forbidding said travel at each end of such highway," and that such power extended to a state trunk highway where a bridge was out and construction was in progress.

Former sec. 81.10 (1), Stats. (1929), provided that whenever any highway under the charge of a town board was "impassable or unsafe for travel or during the construction or repair," the town board could close such highway by erecting barriers which were to be lighted at night.

The 1943 Legislature substantially revised chs. 80, 81, 82, 83, 84, 86 and 87, Stats. Section 146 of ch. 334, Laws of 1943, consolidated secs. 81.10 and 82.04 (6) into revised sec. 86.06 and thus created sec. 86.06 (1) to its present form.

Section 84.07 (1), Stats., permits the State Department of Transportation to contract with any county highway committee to maintain the state trunk highways within or beyond the limits of its county. Although not specifically mandated by statute, it would be more in keeping with the overall legislative intent for the county commissioner promptly to notify the Department of Transportation that it has become necessary to close a state trunk highway because of emergency. Compare sec. 84.07 (4), as amended by ch. 29, sec. 1654, Laws of 1977, which recognizes rights of cities and villages to temporarily close streets over which state trunk highways are marked. Such section provides: "Except in case of emergency, no city or village shall obstruct any street over which any state trunk highway is marked unless it first makes arrangements with the department [of transportation] for marking a detour."

You also inquire whether a sheriff has authority to close any highway during an emergency.

I am of the opinion that such officer does, pursuant to sec.59.24 (1), Stats., which requires such officer to "keep and preserve the peace in their respective counties," and sec.349.02, Stats., which is discussed in 47 Op. Att'y Gen. 82 (1958), and which provides in part:

". . . Police officers, sheriffs, deputy sheriffs and traffic officers are authorized to direct all traffic within their respective jurisdictions . . . . In the event of fire or other emergency, police officers, sheriffs, deputy sheriffs and traffic officers and officers of the fire department may direct traffic as conditions may require notwithstanding the provisions of chs. 346 to 348 and 350."

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