PUBLISHED OPINION
Case No.: 94-0610
94-2194 to 94-2213
Complete Title
of Case:
TOWN OF EAST TROY,
Plaintiff-Respondent-Cross Appellant,
v.
A-1 SERVICE COMPANY, INC.,
and TOWN AND COUNTRY WASTE
SERVICE, INC.,
Defendants-Appellants-Cross Respondents.
___________________________________________
Nos. 94-2194 to 94-2213
TOWN OF EAST TROY,
Plaintiff-Appellant,
v.
A-1 SERVICE COMPANY and
TOWN & COUNTRY WASTE
SERVICE, INC.,
Defendants-Respondents.
Submitted on Briefs: June 1, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: July 26, 1995
Opinion Filed: July 26, 1995
Source of APPEAL Appeal
and Cross-appeal from a judgment and Appeals from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Walworth
(If "Special", JUDGE: John R. Race
so indicate)
JUDGES: Anderson,
P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the defendants-appellants-cross respondents, the cause was submitted
on the briefs of Anthony R. Varda of DeWitt Ross & Stevens, S.C. of
Madison.
Respondent
ATTORNEYSOn
behalf of the plaintiff-respondent-cross appellant, the cause was submitted on
the brief of David A. Hudec of Hudec Law Offices, S.C. of East
Troy.
Amicus
CuriaeOn
behalf of the Wisconsin Department of Transportation, there was an amicus
curiae brief filed by James E. Doyle, attorney general, and Susan K.
Ullman, assistant attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED July 26, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
Nos. 94-0610
94-2194 to 94-2213
STATE
OF WISCONSIN IN COURT OF
APPEALS
No. 94-0610
TOWN OF EAST TROY,
Plaintiff-Respondent-Cross Appellant,
v.
A-1 SERVICE COMPANY,
INC.,
and TOWN AND COUNTRY
WASTE
SERVICE, INC.,
Defendants-Appellants-Cross Respondents.
___________________________________________
Nos.
94-2194 to 94-2213
TOWN OF EAST TROY,
Plaintiff-Appellant,
v.
A-1 SERVICE COMPANY and
TOWN & COUNTRY WASTE
SERVICE, INC.,
Defendants-Respondents.
APPEAL and CROSS-APPEAL
from a judgment of the circuit court for Walworth County: JOHN R. RACE, Judge. Affirmed in part and reversed in part.
APPEALS from a judgment
of the circuit court for Walworth County:
JOHN R. RACE, Judge. Affirmed
in part; reversed in part and cause remanded with directions.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
BROWN, J. A-1
Service Company, Inc. and Town & Country Waste Service, Inc. (A-1) are
waste disposal hauling businesses registered with the Department of Transportation
(DOT) to operate their trucks at the maximum registration weight allowable
under the statutes, 80,000 pounds.[1] Additionally, A-1 obtained overweight
permits allowing it to haul up to 117,000 pounds.
The consolidated appeals
and the cross-appeal arise out of traffic citations issued to A-1 under Town of
East Troy ordinances creating a three-tiered penalty scheme. Under the first tier, the Town prosecuted
A-1 for violations of DOT rules incorporating federal regulations. Under the second tier, the Town, based on
the violations of the DOT rules, invalidated A-1's overweight permits, subjecting
A-1 to overweight penalties. Then,
under the third tier of the scheme, the Town prosecuted A-1 for improper
registration because, under the Town's theory, without an overweight permit,
A-1 was carrying a greater load than that permitted under its registration.
The first issue is
whether a town can incorporate the DOT administrative rules into its municipal
ordinances. We hold that a town has no
authority to incorporate DOT rules into its ordinance and affirm the trial
court on this issue.
The second issue is
whether the Town can, under its own ordinance, invalidate overweight permits
based on violations of DOT rules incorporating the federal motor carrier safety
regulations. We hold that because DOT
rules constitute conditions of overweight permits, violations of those rules
can therefore form the basis for the Town's invalidation of overweight
permits. Therefore, we affirm the trial
court's guilty findings on some overweight citations and reverse the trial
court's dismissal of others.
The third issue is
whether the spilling of a vehicle's load is properly attributed to A-1, the
corporate owner of the vehicle, rather than to the driver personally, for the
purpose of invalidating the corporate entity's overweight permit. We hold that such a violation is properly
attributed to the corporation and affirm on this basis as well.
The fourth issue is
whether an overweight violation under ch. 348, Stats., also constitutes a violation of the registration
statute, § 341.04(2), Stats.,
providing that no registered vehicle may carry “a greater load than that
permitted under the current registration.”
We hold that overweight violations do not subject A-1 to registration
violations and reverse the trial court's guilty findings on those citations.
Between May and August
1992, Town of East Troy police officers stopped A-1 a total of nine times,
issuing thirty-five traffic citations.
We group the citations into three classes as they relate to the town
ordinance's penalty scheme.
In the first class, the
Town cited A-1 for spilling waste on the highway, excessive steering play and
various other equipment and safety violations of the federal motor carrier
safety regulations. See 49
C.F.R. § 393 (1994). The Town wrote the
citations under a town ordinance which, on its face, states that it incorporates
the state traffic code found in chs. 340 to 348, Stats.[2] However, on the specific citations, the Town
purports to enforce and implicitly incorporate into its ordinance Wis. Adm. Code § Trans 325.01(4), the
“Motor Carrier Safety Regulations,” which in turn incorporates “Title 49, Code
of Federal Regulations, part 393, parts and accessories necessary for safe
operation.”
In the second class, the
Town cited A-1 for overweight violations even though none of the vehicles were
operating at a gross weight greater than that allowed by their overweight
permits. This was because the Town
construed the foregoing equipment and safety violations as violations of
conditions of the overweight permits and consequently invalidated the permits
under § 348.25(2)(a), Stats.[3] Thus, the Town calculated the overweight
penalties as if A-1 did not have an overweight permit.
In the third class of
citations, the negation of the overweight permits subjected A-1 to an improper
registration violation. The Town's
theory was that the naked unpermitted vehicles were then in violation of the town
ordinance incorporating § 341.04(2), Stats.,
which prohibits vehicles from operating in excess of the weights authorized by
their registrations. Thus, any weight
over A-1's registered weight, 80,000 pounds, was a registration violation.
After two separate bench
trials, the court dismissed twenty-eight citations. The trial court then found A-1 guilty of seven of the ordinance
violations—four overweight and three improper registration violations—all
apparently either based on violations of conditions of the overweight permits
or suspensions of the permits.[4]
A-1 appeals six of the
convictions (No. 94-0610).[5] The Town cross-appeals the dismissals of
eight citations[6] in the first
bench trial (No. 94-0610) and appeals the dismissals of twenty citations in the
second bench trial (Nos. 94-2194 to 94-2213).[7] This case began as an appeal to be decided
by one judge under § 752.31(2),(3), Stats. Upon review of the briefs, we ordered that
the appeal be decided by a three-judge panel.
The DOT filed an amicus curiae brief at our request.
Now we turn to the first
issue—whether the Town can incorporate DOT regulations into town
ordinances. Although the State of
Wisconsin has preempted the field of traffic regulations, it nonetheless has
chosen to share the field with local authorities. County of Walworth v. Rohner, 108 Wis.2d 713, 718,
324 N.W.2d 682, 684 (1982); see City of Janesville v. Walker, 50
Wis.2d 35, 36-37, 183 N.W.2d 158, 159 (1971).
Local municipalities derive their authority to enact traffic ordinances
from §§ 349.03 and 349.06, Stats. See Walker, 50 Wis.2d
at 36-37, 183 N.W.2d at 159. Thus, our
review of this issue requires interpretation of these enabling sections,
presenting a question of law which we review de novo. See Town of East Troy v. Town & Country Waste
Serv., Inc., 159 Wis.2d 694, 701, 465 N.W.2d 510, 514 (Ct. App. 1990).
In § 349.06(1)(a), Stats., under a heading entitled
“Express Regulatory Powers,” the legislature affirmatively delegated to
municipalities the power to enact and enforce traffic regulations which are “in
strict conformity with one or more provisions of chs. 341 to 348 and 350 for
which the penalty for violation thereof is a forfeiture.” See also Walker, 50
Wis.2d at 37, 183 N.W.2d at 159-60.
Additionally, under § 349.03(1), Stats.,
a local authority may “enact or enforce any traffic regulation” that either
under subsec. (a) “[i]s not contrary to or inconsistent with chs. 341 to 348
and 350” or under subsec. (b) “[i]s expressly authorized by ss. 349.06 to
349.25 or some other provision of the statutes.”
The Town argues that
under subsec. (1)(a) of § 349.03, Stats.,
it may adopt administrative rules not expressly authorized by statute so long
as the rules are not inconsistent with chs. 341 to 348 and 350, Stats.
We disagree with the Town's construction and application of this
subsection to the circumstances of this case.
In City of
Janesville v. Garthwaite, 83 Wis.2d 866, 874-75, 266 N.W.2d 418, 423
(1978), our supreme court construed language in § 349.03(1)(a), Stats., and held that where the local
ordinance involves a matter which the legislature has not chosen to regulate,
local authorities may enact ordinances that are not inconsistent with the
traffic code. See also Steel
v. Bach, 124 Wis.2d 250, 253, 369 N.W.2d 174, 175 (Ct. App. 1985). However, as we read the development of the
case law in this area, in matters the legislature has chosen to regulate, the
local ordinance must strictly comply with chs. 341 to 348 and 350, Stats., and be expressly
authorized by a statutory provision. See
Garthwaite, 83 Wis.2d at 873-74, 266 N.W.2d at 422-23
(distinguishing Walker, 50 Wis.2d at 39-40, 183 N.W.2d at
160-61); City of Madison v. McManus, 44 Wis.2d 396, 401, 171
N.W.2d 426, 429 (1969)); compare Walker,[8]
50 Wis.2d at 37, 183 N.W.2d at 159-60, with § 349.03(1)(b) and §
349.06(1), Stats.
At the outset, we
conclude that this case does not fall under subsec. (1)(a) of § 349.03, Stats.
The Town seeks to adopt Wis. Adm.
Code § Trans 325.01(4),
which is enforced under § 110.075, Stats. See Wis.
Adm. Code § Trans 325.05(1).
Section 110.075 establishes the motor vehicle inspection program, which
is an area the legislature has chosen to regulate through statutory
enactments and delegation of regulatory authority to the DOT. Therefore, we conclude under Garthwaite
that the Town's authority to enact the ordinance in the present case must be
expressly authorized by statute, as required under subsec. (1)(b) of §
349.03. See Garthwaite,
83 Wis.2d at 873-74, 266 N.W.2d at 422-23.
We find no such
statutory authorization. The enabling
sections do not mention the administrative code. Nor does the Town point to any provision in chs. 341 to 348 and
350, Stats., and we know of none,
which grants local authorities the power to enact DOT rules.
Further, § 110.075, Stats., does not address enactment
powers of local authorities. Although §
110.07(1)(b), Stats., states that
all law enforcement officers may enforce the administrative rules, nowhere in §
110.07 does it state that local authorities may set up their own vehicle
inspection program or adopt § Trans
325.01(4) or any DOT rules. We
discovered no statutory language indicating that the state intends to share its
regulatory powers under § 110.075 with local authorities. Therefore, we hold that neither the enabling
statutes nor any other statute gives the Town authority to adopt § Trans 325.01(4).
We also conclude that the Town's adoption of
the DOT rule was improper on an additional ground.[9] The Town contends that its power to adopt
DOT rules naturally flows, as part of the overall regulatory scheme, from its
power to adopt statutory traffic laws and, therefore, express authorization is
unnecessary. However, we agree with
A-1 that the Town's position raises a fundamental due process issue. Due process requires that parties have
reasonable notice of an offense. Town
of East Troy, 159 at 704, 465 N.W.2d at 515. Here, without express authorization in the sections giving
municipalities their enactment powers, the parties are not put on reasonable
notice that their potential liability under town ordinances includes liability
under the administrative code. We note
that local authorities adopting state traffic laws are not required to
incorporate them by reference in their ordinances. See § 349.06(2), Stats. However, § 349.03, Stats., and § 349.06 limit the enactment power of local
authorities to that expressly authorized by statute, thereby putting parties on
notice that their liability under municipal ordinances could include that under
state statutory law—but not the state administrative code. We affirm the trial court's dismissal of
citations relating to the town ordinance adopting the DOT rule.[10]
We move on to the next
issue, which is whether compliance with the DOT rules is a condition of an
overweight permit. This issue involves
the construction of provisions in ch. 348, Stats.,
and related administrative code sections, presenting a question of law which we
review de novo. See Town
of East Troy, 159 Wis.2d at 701, 465 N.W.2d at 514.
Section 348.25(2)(b), Stats., states that any permittee who
violates the permit's weight restrictions, but complies with the permit's other
conditions, is subject to forfeiture penalties computed from the weight
restriction authorized in the permit.[11] Town of East Troy, 159 Wis.2d
at 698, 465 N.W.2d at 513. However,
that rule does not apply if the permittee violates “any other conditions of an
overweight permit.” See §
348.25(2)(b). Then the permittee “is
subject to the same penalties as would be applicable if that person were
operating without a permit.” See § 348.25(2)(a). Those penalties are calculated according to
§ 348.15(3)(c), Stats.,
requirements.
The DOT may impose
reasonable conditions for the issuance of an overweight permit. Section 348.25(3), Stats. Under Wis. Adm. Code § Trans 269.14, the DOT
has established the “[g]eneral conditions and requirements” for garbage or
refuse permits. Section Trans 269.14 provides: “A permittee shall comply with all
applicable statutes, ordinances, rules and policies of any state agency
or subdivision of the state, unless they are modified by the conditions of the
permit.” (Emphasis added.)
The Town and the DOT in
its amicus brief contend that 49 C.F.R. § 393, federal motor carrier
safety regulations—which prohibit spilling, excessive steering play, air leak
suspension, and other equipment defects—are all incorporated into the DOT rules
and therefore are conditions of A-1's permits.
We agree.
In Wis. Adm. Code § Trans 327.03(4), the
DOT incorporates 49 C.F.R. § 393 (parts and accessories necessary for safe
operation) into its administrative rules.[12] Thus, we conclude that § Trans 327.03(4), and by incorporation,
49 C.F.R. § 393, as a rule of the DOT is a rule “of any state agency” under
§ Trans 269.14. Even though, under the holding of the
present case, the Town may not adopt the DOT rule to enforce an independent
substantive offense under a town ordinance, a violation of a permit condition
need not be an independent substantive vehicle code offense for which a
conviction can be obtained. See Town
of East Troy, 159 Wis.2d at 703, 465 N.W.2d at 515. We hold that compliance with § Trans 327.03 incorporating the federal
regulations is a condition of overweight permits.
The third issue is
whether the spilling violations were properly attributed to A-1 for the purpose
of invalidating its overweight permit.
A-1 contends that the spilling violations, which are enforced under §
110.075(1),[13] Stats., should be attributed to the
driver because that section contains a scienter requirement—that no person
shall “knowingly permit to be driven ¼ any vehicle ¼ which is not in conformity with the requirements of
this section.” See § 110.075(1)
(emphasis added). A-1 argues that
without proof that it knowingly permitted the driver to violate the DOT rules,
it should not suffer the overweight penalties.
We disagree with A-1
because, as the DOT points out, § 110.075(1), Stats.,
has other language not containing a scienter requirement. That section also provides that no person
shall “cause ¼ to
be driven ¼ any
vehicle ¼
which is not in conformity.” Id.
(emphasis added). “Knowingly” does not
modify “cause.”
State v. Dried Milk
Prods. Coop., 16 Wis.2d 357, 361, 114 N.W.2d 412, 414-15
(1962), provides further guidance on
the construction of “cause.” In that
case, our supreme court construed “cause” in § 348.02, Stats., 1959,[14]
and held that while the term carried a requirement of some awareness, it was no
more than “an awareness of the vehicle operating on the highways pursuant to
the licenses and within the scope of the owner's or employer's business.” Dried Milk Prods., 16 Wis.2d
at 361, 114 N.W.2d at 414-15. The court
also noted that “knowingly” did not modify “cause,” as in previous versions of
the statute. See id.
at 359-60, 114 N.W.2d at 414.
We hold that the Dried
Milk Prods. construction of “cause” applies here as well. It is undisputed that the A-1 vehicles were
“operating on the highways pursuant to the licenses and within the scope of
[its] ¼
business.” See id.
at 361, 114 N.W.2d at 414-15. And A-1,
as the employer of the drivers and the owner of the vehicles, does not claim
that it was unaware of those operations.
Furthermore, we are
convinced that ch. 348, Stats.,
relating to overweight prosecutions, is consistent with our
interpretation. Section § 348.20, Stats., states the policy for
prosecuting overweight violations:
It is
declared to be the public policy of the state that prosecutions for overweight
violations shall in every instance where practicable be instituted against the
person holding the authority, certificates, licenses or permits evidencing
operating privileges from the department which may be the proper object of
cancellation or revocation proceedings.
In instances where a combination of tractor and trailer or semitrailer
is used, the person standing in the relationship of principal or employer to
the driver of the tractor portion of the vehicle combination is liable for
violation of ss. 348.15 to 348.17 along with the owner holding authority,
certificates, licenses or permits from the state.
Therefore, our
legislature has set forth the policy prescribing prosecution against employers
and owners—the permit holders—rather than drivers. Here, it is undisputed that A-1, not the driver, held the permits
and was, consequently, subject to any revocation of the permits. Thus, we hold that the 49 C.F.R § 393
violations were properly attributed to A-1.
We reverse the trial court's dismissal of the overweight citations in
the second bench trial[15]
and affirm the trial court's guilty findings on the overweight citations in the
first bench trial.[16]
A-1 contends that if we
reverse the trial court's dismissal of any citations from the second bench
trial, we must remand for a determination of the factual bases of those
citations. However, according to the
judgment and transcript from the second bench trial, the parties stipulated to
the factual bases in the citations, including the weights of the vehicles, the
spilling of waste material and excessive steering play, and then presented
their cases to the trial court solely on the questions of law. There thus exists a conflict between A-1's
contention and the apparent state of the record. Therefore, we remand for the trial court to resolve this conflict
and rule whether the stipulated facts support the charges and, if so, to
determine the appropriate penalties.
The fourth issue is
whether overweight violations also
subject A-1 to registration violations.
A-1 obtained overweight permits under § 348.27(12), Stats.
This permit allowed it to operate at weights in excess of maximum weight
limitations, 80,000 pounds, set forth in § 348.15(3)(c), Stats., and the maximum weight a
carrier is allowed to register under the registration statute, § 341.04(2), Stats.
This issue requires us to construe § 341.04(2) with ch. 348, Stats., presenting a question of law which
we review de novo. See Town of
East Troy, 159 Wis.2d at 701, 465 N.W.2d at 514.
Section 341.04(2), Stats., provides in relevant part:
[I]t
is unlawful for any person to operate or for the owner to consent to being
operated on any highway of this state any registered vehicle the construction
or use of which has been changed so as to make the vehicle subject to a higher
fee than the fee at which it currently is registered or which is carrying a
greater load than that permitted under the current registration.
The Town contends that,
under this section, when a carrier violates an overweight permit by carrying a
load in excess of its permit, at the same time the carrier also violates the
registration statute by carrying a greater load than that permitted under the
current registration. Thus, under the
Town's argument, the overweight permit is a temporary shield against a
registration violation. We disagree
with the Town.
Section 341.04(2), Stats., proscribes operating at a
weight which would “make the vehicle subject to a higher fee than the fee at
which it currently is registered.”
Under the statute's penalty provision, § 341.04(3)(a) and (b), a person
who operates an improperly registered vehicle “may be required to forfeit not
more than $500” and “the court shall order the offender to make application for
registration or reregistration and to pay the required fee.” See § 341.04(3)(c). Thus, what is prohibited is operating at a
weight which commands a higher registration fee. And the penalties for a registration violation are forfeiture and
reregistering at the proper weight and paying the proper fee. Here, as A-1 argues, it was registered at
the maximum registration weight allowable under Wisconsin statutes and it paid
the proper registration fee.
Moreover, nothing in ch.
348, Stats., persuades us to
graft registration penalties onto the sections providing for overweight
violations. Under § 348.27(12), Stats., the DOT issues overweight
permits for the transportation of garbage in a vehicle “which exceeds statutory
weight and length limitations.”
Sections 348.15 and 348.16, Stats.,
establish the statutory weight limits for operating on the state Class A and B
highways. Further, § 348.25(1), Stats., provides that “[n]o person
shall operate a vehicle or transport an article ¼ without first obtaining a permit therefor as provided
in ¼ [§]
348.27 if such vehicle ¼
exceeds the maximum limitations on ¼ weight ¼ of
load imposed by this chapter.” These
ch. 348 sections do not mention the registration statute or its
requirements. We agree with the DOT
that under ch. 348, overweight permits create exceptions to the weight limits
set forth in ch. 348, not to the registration requirements of § 341.04, Stats.
Thus, we conclude that the legislature intended the registration penalty
and overweight penalty provisions to be independent of each other.
Therefore, there being
no higher registration status A-1 could achieve and no higher registration fee
it could pay, we hold that A-1 did not violate the registration statute. We reverse the trial court's guilty findings
on the improper registration citations from the first trial[17]
and affirm[18] its
dismissal of such citations from the second trial.[19]
By the Court.—Judgment
affirmed in part and reversed in part.
By the Court.—Judgment
affirmed in part; reversed in part and cause remanded with directions.
[1] Section 341.25(2), Stats., provides for annual registration fees for truck tractors based on gross weight.
[2]
Our search of the appellate record did not reveal a complete copy of the
applicable ordinance; therefore, we quote the following excerpted version taken
from the trial court judgment:
SECTION 6.01 - PROVISIONS OF
STATE LAW ADOPTED BY REFERENCE.
(1) State Traffic Forfeiture Laws
Adopted.
(a) Except as otherwise
specifically provided in this ordinance, all provisions of chapters 340 to 348
of the Wisconsin Statutes describing and defining regulations with respect to
vehicles and traffic for which the penalty is a forfeiture only, ¼ are
hereby adopted and by reference made a part of this ordinance as if fully set
forth herein. Any act required to be
performed or prohibited by any statute incorporated herein by reference is
required or prohibited by this ordinance.
(b) Sections of chapters 340 to 348 adopted by reference shall include but not be limited to the following ¼.
[3] Section 348.25(2)(a), Stats., provides that “any person who violates a condition of a permit under which that person is operating is subject to the same penalties as would be applicable if that person were operating without a permit.”
[4]
In the first bench trial, the trial court, the Honorable John R. Race
presiding, dismissed two citations for the Town's failure to employ proper
weighing techniques and six citations on the basis that the Town cannot adopt
DOT rules. All of the seven guilty
findings are from the first bench trial.
Three guilty findings (citations R699446-6, R699445-5 and SO33456-3
issued on May 6, 1992) are conceivably related to DOT “spring thaw
restrictions.” When spring thaw
restrictions are in effect, overweight permits are suspended and permittees
must operate at weight limits set forth in ch. 348, Stats. Compare Wis. Adm. Code § Trans 255.06(2) with
§ 348.15(3)(c), Stats. However, at least four violations (two overweight
violations under § 348.15(3)(c) and two companion improper registration
violations: SO 33451-5, S033454-1, SO33357-2 and SO33368-6) can be attributed to an invalidation of an
overweight permit based on companion violations of DOT rules.
Even so, in the second bench trial, Judge Race dismissed all twenty of the citations on the basis that the Town could not adopt the administrative code and, therefore, any violation of the code could not invalidate an overweight permit or, correlatively, subject A-1 to improper registration violations.
[5] A-1 in its brief-in-chief indicates that it does not appeal the guilty finding on one of the overweight violations (R699446-6). The undisputed testimony at trial was that spring thaw restrictions were in effect on the date of this citation and that, therefore, A-1 was restricted to operating at up to 80,000 pounds. A-1, however, does appeal two improper registration violations issued on the same date (R699445-5 and SO33456-3).
[6] The trial court dismissed two of these citations (SO33384-1 and S033386-3) for improper weighing procedure. The Town presents no argument regarding these citations. Therefore, we deem any appeal of these citations abandoned.
[7] Although the judgment states that the trial court dismissed twenty-one citations and, in the notice of appeal, the Town appeals twenty-one citations, the appellate record reveals twenty citations. And we presume that the reference in the judgment and the notice of appeal to citations M33320 and S464230-1 are actually meant as citations in the appellate record—M39320 and S464230-4.
[8] In City of Janesville v. Walker, 50 Wis.2d 35, 36-37, 183 N.W.2d 158, 159-60 (1971), our supreme court addressed an argument similar to that set forth by the Town here. The City of Janesville contended that subsecs. (a) and (b) of § 349.03(1), Stats., presented two separate powers to enact traffic ordinances, with subsec. (a) permitting the enactment of rules which, while not in strict conformity with the traffic statutes, are not inconsistent with the traffic statutes. Our supreme court rejected that argument, holding that §§ 349.03 and 349.06, Stats., must be read together to establish one test—that municipal traffic ordinances must be in strict conformity with chs. 341 to 348 and 350, Stats. See Walker, 50 Wis.2d at 36-37, 183 N.W.2d at 159-60 (construing § 349.03, Stats., 1969, which provides that local traffic regulation may not be inconsistent with chs. 341 to 348, Stats.).
[9] We acknowledge, as the DOT states in its amicus brief, that cases should be decided on the narrowest possible ground. See State v. Blalock, 150 Wis.2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989). However, here, we decide on two independent and equal bases and conclude that each basis would be sufficient grounds to affirm the trial court.
[10] S033387-4, S033390-0, R699448-1, S033383-0, S033382-6, S033399-2, S464230-4, S464251-4, S464252-5, S464210-5, S464218-6, S464238-5, S464236-3, S464237-4 and S464235‑2.
[11]
Section 348.25(2)(b), Stats.,
provides that overweight penalties are calculated under § 348.21(3), Stats.; it specifically states:
If an overweight permit has been obtained under s. 348.26 or 348.27, and the vehicle exceeds the weight stated in the permit, any overweight violation shall be computed on the basis of the weight authorized in the permit. The amount of the forfeiture for overweight violations determined under this paragraph shall be calculated as provided in s. 348.21(3). This paragraph does not apply if any other conditions of an overweight permit are violated.
[12] The DOT, in its amicus brief, points out that Wis. Adm. Code § Trans 325.01(4), which the Town seeks to incorporate in its ordinance, is applicable only to interstate commerce. Since the testimony at trial was that the vehicles were operating wholly within the State of Wisconsin, the DOT contends that § Trans 325.01(4) would not apply to the circumstances of this case. However, the DOT also points out that Wis. Adm. Code § Trans 327.03, applicable to intrastate commerce, incorporates those same federal regulations.
[13] Section 110.075(1), Stats., provides: “No person shall drive or move, or cause or knowingly permit to be driven or moved, on any highway any vehicle or combination of vehicles which is not in conformity with the requirements of this section.”
[14] Section 348.02(3), Stats., 1959, provided: “Any owner of a vehicle who causes or permits such vehicle to be operated on a highway in violation of this chapter is guilty of the violation the same as if he had actually operated the vehicle himself.”