Holdgrafer v. Town of Benton

169 N.W. 574, 168 Wis. 187, 1918 Wisc. LEXIS 176

• Court: Wisconsin Supreme Court
• Decided: December 3, 1918
• Status: Published

Opinions

Vinje, J.

The circuit court sustained the demurrer to the complaint, holding that under the provisions of sec. 1322m, Stats. 1917, no duty devolved upon the town to repair the bridge in question so that it would sustain a weight of more than ten tons. The correctness of this ruling is challenged by the appellant. Sec.. 1322m provides:

“From and after the passage and publication of this act, no iron, steel or concrete bridge or culvert of more than four feet in length of span shall be constructed in any highway in this state unless it shall be designed, according to standard engineering practice, to have sufficient strength to carry, without planking, any. load that may be driven or propelled upon, on or along such bridge or culvert, of not more than fifteen tons, and no such bridge or culvert shall be repaired unless such repairs shall leave such bridge or culvert in such condition that it shall have sufficient strength, according to standard engineering practice, to carry, without planking, any load that may be driven or propelled upon, on or along such bridge or culvert, of not more than fifteen tons.”

Previous to the passage of ch. .642, Laws 1911, now the section quoted, which took effect July 12, 1911, bridges of the class in question were not required to sustain a weight of more than ten tons. It is a matter of common knowledge that the weight of loads on country highways has of late years steadily increased. We have heavier threshing machines, engines, and tractors; and auto drays carrying heavy loads are in use as well as heavy road machinery of various kinds. Owing to- such increase in the weight of loads the legislature made provision for stronger bridges, first, by construction, and second, by repair. It is clear that every bridge of the class mentioned in the section, to wit, every “iron, steel or concrete bridge or culvert of more than four feet in length of span,” constructed after July 11, 1911, must be so constructed as to maintain a weight of fifteen tons or more. The law then says that “no such bridge or culvert shall be repaired unless such repairs shall leave such bridge or culvert in such condition that” it shall sustain a weight of fifteen tons. The word “such” is an adjective and relates to the kind of bridge or culvert mentioned in the first sentence and not to the time of its construction. The words “no such bridge or culvert” take the place of the words “no iron, steel or concrete bridge or culvert of more than four feet in length of span.” So that it is just the same as if the law read, “from and after the passage and publication of this act no iron, steel, or concrete bridge or culvert of more than four feet in length of span shall be repaired,” etc. If the provision as to repairs related only to bridges of the class mentioned which are constructed after the passage of the act it would be superfluous, for a bridge required to be constructed to sustain a weight of fifteen tons must, ipso facto, be kept in repair to sustain that weight. No additional provision is necessary to declare that duty. The legislative intent was to make all new bridges oí the required kind sustain fifteen tons and to bring old bridges of the required kind into the fifteen-ton class when they were repaired. In this way, and only in this way, could the legislature without too much expense to municipalities gradually and within a reasonable time bring all bridges into the fifteen-ton class. A contrary construction would permit all bridges built prior to 1911 to remain indefinitely in the ten-ton class, and highways would continue indefinitely to be inadequate to sustain modern loads. It is evident, therefore, that the circuit court erred in its construction of the statutes.

By the Court. — Order reversed, and cause remanded with directions to overrule the demurrer, and for further proceedings according to law.