Co. of Stark v. Co. of Henry

No. 3--97--0507
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998


THE COUNTY OF STARK, ) Appeal from the Circuit Court
) for the 14th Judicial Circuit
Plaintiff-Appellant, ) Henry County, Illinois
)
v. ) No. 96--MR--89
)
THE COUNTY OF HENRY, )
) Honorable
Defendant-Appellee. ) Jeffrey O'Connor,
) Judge Presiding
_________________________________________________________________

PRESIDING JUSTICE McCUSKEY delivered the opinion of the court:
_________________________________________________________________

The County of Stark (Stark County) appeals from a judgment in
favor of the County of Henry (Henry County). The trial court
entered judgment after a jury found that Henry County was not
required to pay for a portion of the costs of rebuilding a bridge
located in Stark County. On appeal, Stark County argues that Henry
County should have been required to pay pursuant to section 5--503
of the Illinois Highway Code (605 ILCS 5/5--503 (West 1994))
because the bridge was located on a county line highway.
We hold that Stark County was required to prove that the road
in question was located within 80 rods of the county line in both
Stark County and Henry County in order to prove that the bridge was
located on a county line highway pursuant to section 5--503.
Following our careful review of the record, we conclude that Stark
County failed to prove that the road located in Henry County was
within 80 rods of the county line. Accordingly, we affirm.
FACTS
The bridge at issue is known as the Harold Dustin Bridge. It
is located in Stark County on a road which begins at Route 78 in
Stark County, crosses the county line into Henry County, traverses
the southeast corner of Henry County until it re-enters Stark
County before it ends at Route 91. Based upon the record and the
way this case has been presented for review, we conclude that it is
not necessary to discuss that portion of the road which leaves
Henry County and then returns back into Stark County before it
ultimately ends at Route 91.
In 1990, the Harold Dustin Bridge was placed on a priority
list of bridges in need of repair in Stark County. On July 9,
1990, George Meister, highway engineer for both Stark County and
Marshall County, entered into an agreement with Hanson Engineering
to prepare plans for rebuilding the Harold Dustin Bridge. Hanson
completed the engineering plans in 1992 or 1993. Money for the
bridge was included in Stark County's appropriation budget for
1994. The County was planning on using township bridge program
money from the State to pay for the construction expense. At that
time, Meister did not believe that the Harold Dustin Bridge was
located on a county line highway. As a result, Meister did not
expect Henry County to contribute to the cost of rebuilding the
bridge.
In April 1994, Meister was contacted by Woodford County
regarding a different bridge project. Meister was informed by
Woodford County that Marshall County was required to contribute a
portion of the cost for a bridge project in Woodford County.
Marshall County agreed to contribute to the Woodford County
project. Meister believed that the situation in the case at hand
was similar to the Woodford County bridge project. Consequently,
Meister concluded that Henry County should contribute to the
rebuilding of the Harold Dustin Bridge.
On June 30, 1994, Meister called Steven Brandau, Henry
County's highway engineer. Meister said that he thought the Harold
Dustin Bridge was located on a county line highway and that Henry
County should contribute to the cost of rebuilding the bridge.
Brandau responded by telling Meister that he did not think the
bridge was located on a county line highway and therefore no reim-
bursement would be forthcoming from Henry County. However, Meister
and Brandau did agree to seek an opinion on the matter from the
office of the Illinois Attorney General. Thereafter, the State's
Attorneys of both counties requested an opinion from the Attorney
General.
On July 28, 1994, Stark County opened the bids for the
rebuilding of the Harold Dustin Bridge. The contractor was
selected, and a contract was subsequently signed. Construction on
the bridge began near the end of August 1994.
On April 11, 1995, Meister sent a formal written notice to
Brandau and the chairman of the Henry County Board requesting that
Henry County contribute to the cost of rebuilding the Harold Dustin
Bridge. The Henry County Board denied the request. The bridge was
completed in June 1995 at a total cost of $191,857.52.
On January 31, 1996, the Illinois Attorney General issued a
formal opinion regarding the bridge project. 1996 Ill. Att'y Gen.
Op. ___, No. 96-007. The Attorney General stated that he had been
asked regarding the applicability of section 5--503 of the Illinois
Highway Code (605 ILCS 5/5--503 (West 1994)) to the construction of
the Harold Dustin Bridge. Section 5--503 states the circumstances
under which adjoining counties must share the cost of constructing
and repairing bridges.
The Attorney General stated that, in his opinion, section 5--
503 "applies only to bridges or related structures on roads that
are on county lines or on highways which can properly be denominat-
ed 'county line highways' and which deviate not more than 80 [rods]
from the established county line." In the Attorney General's
opinion, a road was considered a "county line highway" pursuant to
section 5--503 when the road was lying on or closely paralleling a
county line. The Attorney General stated that the statute referred
"to bridges on highways which deviate not more than 80 rods from a
county line, not to bridges on highways some parts of which lie
within 80 rods of a county line." The Attorney General concluded
that, based on the facts submitted by Henry County, the road in
question would probably not be considered a county line highway
under section 5--503.
On September 12, 1996, Stark County filed its complaint
against Henry County seeking 81.8% of the cost of the bridge which
totalled $191,857.52. A jury trial was held on June 11, 1997.
Meister testified at trial that there was no portion of the
road in question which was more than 80 rods from the Stark County
line. A survey was admitted into evidence which showed that the
entire portion of the road in Stark County extending from Route 78
to the Henry County line was located within 80 rods of the county
line. Moreover, the survey showed that the Harold Dustin Bridge
was located on this portion of the Stark County road.
During cross-examination, Meister clarified that he was only
testifying about the portion of the road located in Stark County.
Meister noted that, based upon Illinois Department of Transporta-
tion (IDOT) record-keeping, the road ended and was given a
different name when it crossed into Henry County. No survey was
introduced into evidence for that portion of the road located in
Henry County. When cross-examined about a large Henry County
exhibit described as a "layout map," Meister testified that he did
not know whether the portion of the road in Henry County was
located within 80 rods of the county line.
During closing argument, Henry County claimed the road was not
a county line highway. Henry County argued that a review of the
Henry County exhibit would clearly reveal that the portion of the
road located in Henry County was more than 80 rods from the county
line. Henry County contended that it was not enough under the
statute for Stark County to prove that the bridge was less than 80
rods from the county line in Stark County. Instead, Henry County
argued that the statute required Stark County to prove that the
road was located within 80 rods of the county line in both
counties.
The jury left the courtroom to deliberate at 3:45 p.m. on June
11, 1997, and returned 30 minutes later with a verdict in favor of
Henry County. Stark County's timely appeal followed.
ANALYSIS
I. STANDARD OF REVIEW
It is well established that, in an appeal from a jury verdict,
a reviewing court may reverse the jury's decision only if it is
against the manifest weight of the evidence. Rhodes v. Illinois
Central Gulf R.R., 172 Ill. 2d 213, 242, 665 N.E.2d 1260, 1274
(1996). A judgment is against the manifest weight of the evidence
when an opposite conclusion is apparent, or when the jury's
findings are unreasonable, arbitrary or not based upon the
evidence. Rhodes, 172 Ill. 2d at 242, 665 N.E.2d at 1274.
II. COUNTY LINE HIGHWAY
Stark County claims that the portion of the road including the
Harold Dustin Bridge lies entirely within 80 rods of the Stark
County line "and is therefore a county line highway." We disagree
with Stark County's conclusion based upon the law and the evidence
presented in this case.
Section 5--503 of the Illinois Highway Code states, in
pertinent part:
"Bridges, culverts or drainage structures
for across highway waterways having a waterway
opening of 25 square feet or more and located
on county highways, township roads or district
roads on county lines, and bridges, culverts
or drainage structures for across highway
waterways having a waterway opening of 25
square feet or more and located on such county
line highways where such highways deviate from
the established county line within 80 rods of
county lines, shall be constructed and re-
paired by such counties and the expense of
such construction and repair shall be borne in
a proportion to the assessed value of the
taxable property in the respective counties
according to the last preceding equalized
assessment thereof prior to such construction
or repair." (Emphasis added.) 605 ILCS 5/5--
503 (West 1994).
Interestingly, the only reported case construing the statute
in question involved the same bridge in Stark County. County of
Stark v. County of Henry, 326 Ill. 535, 158 N.E. 116 (1927). In
that case, the court determined that Henry County was required to
reimburse Stark County for a portion of the cost of constructing
the bridge in Stark County. However, the statute in effect in 1927
required contribution from the adjoining county when the bridge in
question was located on a road within 80 rods of the county line.
Ill. Rev. Stat. 1927, ch. 121, par. 41; County of Stark, 326 Ill.
at 537, 158 N.E. at 117. The court determined that the statute in
effect at that time applied because the bridge was located within
80 rods of the county line. County of Stark, 326 Ill. at 539, 158 N.E. at 118.
The language of the statute in question was changed by the
Illinois General Assembly following the supreme court's decision in
County of Stark. We note that the parties have not cited to this
court, nor have we found, any case construing the language of the
amended statute quoted above.
The Attorney General in his opinion determined that the lan-
guage of the current statute "now applies only to bridges or
related structures on roads that are on county lines or on highways
which can properly be denominated 'county line highways' and which
deviate not more than 80 [rods] from the established county line."
1996 Ill. Att'y Gen. Op. ___, No. 96-007. The Attorney General
noted that the statute does not specifically define a "county line
highway." However, he noted that the language of section 5--503:
"clearly contemplates a road lying on, or
closely paralleling, a county line. Thus, it
refers to bridges on highways which deviate
not more than 80 rods from a county line, not
to bridges on highways some parts of which lie
within 80 rods of a county line." (Emphasis
added.) 1996 Ill. Att'y Gen. Op. ___, No. 96-
007.
The Attorney General then concluded in his opinion:
"As to whether the road in question is a
county line highway, assertions by the Henry
County Engineer *** suggest that it is not.
The road evidently crosses the extreme south-
east corner of Henry County, but originates
and ends in Stark county, portions of which
lie both south and east of Henry County. No
information has been provided regarding the
extent to which the road may parallel the
county line to the west of the bridge in
question, or the distance it may deviate
therefrom at any other point. *** [This] must
be considered in determining whether the road
is a county line highway to which section 5--
503 is applicable." 1996 Ill. Att'y Gen. Op.
___, No. 96-007.
From our review of the Attorney General's opinion, we find a
careful consideration of the legislative amendments to the statute
in question. We also find sound reasoning in the Attorney
General's interpretation of the present statute. We are mindful
that an Attorney General's opinion is not binding on a reviewing
court in this State. Mulligan v. Joliet Regional Port District,
123 Ill. 2d 303, 317-18, 527 N.E.2d 1264, 1271 (1988). However, a
well-reasoned opinion of the Attorney General is persuasive
authority and entitled to considerable weight on review in
resolving a question of first impression regarding the construction
of an Illinois statute. Sparks & Wiewel Construction Co. v.
Martin, 250 Ill. App. 3d 955, 965, 620 N.E.2d 533, 541 (1993); see
also Mulligan, 123 Ill. 2d at 317-18, 527 N.E.2d at 1271.
We agree with the Attorney General's analysis of section 5--
503 that the statute requires adjoining county contribution when
the bridge is located on a county line highway. Moreover, we also
agree with the Attorney General that a road is a county line
highway under the statute when the entire road is on or parallel to
the county line and deviates no more than 80 rods from the county
line.
As a result, we disagree with Stark County's analysis of
section 5--503. Stark County essentially claims that a bridge is
on a county line highway when the bridge is located within 80 rods
of the county line. If we were to accept Stark County's analysis,
we would reach the same conclusion that the court did in 1927. See
County of Stark, 326 Ill. at 537-39, 158 N.E. at 117-18. However,
as we have previously noted, the language of section 5--503 has
been changed by the General Assembly over the years following the
supreme court's decision in 1927. A reviewing court must presume
that the General Assembly intended some change in the law when it
amends a statute. In re Petition of the Board of Trustees of the
Mokena Community Public Library District, 287 Ill. App. 3d 1064,
1067, 680 N.E.2d 743, 746 (1997).
From our review of section 5--503, we conclude that Stark
County was required to prove that the entire road in question was
located within 80 rods of the county line in both Stark County and
Henry County in order to prove that it was a county line highway.
The record shows that Stark County only proved that the road in
Stark County was located within 80 rods of the county line. It is
undisputed that Stark County failed to present any evidence
regarding the location of the road in Henry County. As a result,
Stark County failed to prove that the road was a county line
highway as required by the statute. Consequently, we find that
Stark County failed to meet the requirements of section 5--503 as
it applies to the Harold Dustin Bridge. For these reasons, we find
the jury's verdict was not against the manifest weight of the
evidence.
III. CONCLUSION
In sum, we have concluded that Stark County failed to prove
that the Harold Dustin Bridge was located on a county line highway.
Because of our determination, it is not necessary for us to review
the additional issues raised in this appeal.
For the reasons stated, the judgment of the circuit court of
Henry County is affirmed.
Affirmed.
LYTTON, J., concurring.
JUSTICE HOMER, specially concurring:
I agree that Stark County failed to prove that the Harold
Dustin Bridge project qualifies for the mandatory cost-sharing
provisions of section 5--503 Illinois Highway Code (605 ILCS 5/5--
503 (West 1994)). However, I believe that the majority opinion
establishes a faulty definition of "county line highway", which may
create controversy in some adjoining counties where none now
exists.
The majority attempts to extrapolate a definition of county
line highway from section 5--503. I believe this is the wrong
approach since the section was never intended to define county line
highway but to describe which structures qualify for mandatory
cost-sharing.
Under section 5--503, the structures which qualify are located
on county highways, township roads or district roads on county
lines, and structures on such county line highways where such
highways deviate within 80 rods of the established county line. A
plain reading of the statute reveals the phrase "such county line
highways," as used here, refers to "county highways, township roads
or district roads on county lines." This language does not work in
reverse to establish a definition of "county line highway." It
seems more likely that the General Assembly found it unnecessary to
define county line highway because those roads that were county
line highways were well known and designated as such.
What the opinion seems to rely on to come to its conclusion is
that Stark County failed to prove the portion of the road in Henry
County was within 80 rods of the county line. Such a technical
approach is faulty. The definition established in the opinion may
result in some structures physically located on county lines being
excluded from mandatory cost-sharing. Such would be the case with
a road that tracks a county line for a short distance before
vectoring off in another direction. Even if the structure lay
squarely on the county line in such instance, the majority opinion
would exempt it from mandatory cost-sharing, merely because the
road upon which it is located eventually deviates more than 80 rods
from the county line, and therefore cannot be considered a "county
line highway." Conversely, a neighboring county could be compelled
to share the cost of a structure located on a road which never
connects with the county line and which the counties never before
contemplated constituted a county line highway. This would be true
even if no remarkable terrain characteristics would have made
construction of a road on the county line difficult or impossible.
I do not believe the legislature ever intended such anomalous
results.
The subject bridge does not qualify for mandatory cost-sharing
under section 5--503 because it is not a structure located on a
highway or road on a county line. While it is not necessary for
the structure, itself, to lie on the county line, I believe the
plain language of the statute should be reasonably construed to
require at least portions of the road on both ends of the structure
on which the road is located to lie on the county line. Further,
such segment of road containing the structure must deviate no more
than 80 rods from the county line in order to invoke mandatory
cost-sharing. The evidence established that although the road in
question crossed the Stark-Henry County lines in two locations, it
was not a road on a county line within the contemplation of section
5--503.
Permissive cost-sharing for structures which cross county lines is
prescribed in section 5--502.
While I agree with the result reached by majority in this
case, I disagree with its rationale.