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). September 1a. 1951 superseded. Minn. Stat.§ 164.12 (1996).

                                                                                      379C-8(c)



                                        November 5, I ']98

David J. Hauser
Otter Tail County Attorney
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 Oscar Township in Otter Tail County and Akron Township in Wilkin
       County running along the county line. In 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 Attorney General rendered the opinion that. pursuant to an
       agreement entered between the two towns in I 885. Oscar Township remained
       entirely responsible for maintaining the remaining mile of town road originally
       allocated to it. C'r Atty. Gen. 379C - SC. Septembens,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 following:

                                            QUESTION

        In these circumstances. when counties have taken over control and maintenance of a
portion of a former township road on a town line. who is responsible for maintaining the portion
of the road not taken ovd?
David J. Hauser
Page2

                                           OPINION

       As noted above, Minn. Stat. § 164. 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 ofresponsibility.

       In our view this provision applies to the mile of road lying between Oscar and Akron
Townships, described in the facts presented.
       it has been argued that. inasmuch as Minn. Stat. § 164.12 did not exist when the counties
took over five miles of the road in 1951, its enactrnem in 1959 can have no effect upon the
allocation of maintenance responsibility under the pre-existing 1885 agreement. It is true that
statutes enacted by the legislature will not be construed to be "retroactive unless clearly and
manifestly so intended by the legislature." Minn. Stat.§ 645.21. Because of this presumption
and constitutional prohibitions against impairment the obligations of contracts. statutes are often
held inapplicable to contrncts in existence at the time of their enactment. See e.g., Jacobsen v.
Anheuser Bush. Inc. 

(Minn. 1986). Such is not always the case, however,
especially in cases involving agreements between units of local governn1ent. As creatures of the
state. local governn1ents and their contractual relationships with one ano\her do not enjoy the
same constitutional protectioas from legislative modification as private persons. See e.g., La
Crescent Township v. Citv of La Crescent. 

(Minn. Ct. App. 1994), wherein the
court upheld application or 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. Hauser
Page3

          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, ... " (Emph.asis added). At the time it
took effect in 1959, that language could only have applied to agreements entered into prior tc its
enactment. Furthermore, the remedial nature ofthe provision argues in favor of its application to
pre-existing divisions ofresponsibility. Cf.Olsen v. Special School District #1, 

(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 ofresponsibility.
          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. 3 79C-8-C, September l 8; 1951 is superseded to the extent inconsistent
herewith.

                                                 Very truly yours.

                                                 HUBERT H. HUMPHREY JlI
                                                 Attorney General



                                                  KENNETH E. RASCHKE. JR.
                                                  Assistant Attorney General




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