When two Minnesota townships split maintenance of a town-line road in an 1885 agreement and the counties later took over part of the road, can the county boards reallocate responsibility for the remaining township portion?

Plain-English summary

Otter Tail County Attorney David Hauser asked AG Hubert Humphrey III about a six-mile road on the boundary between Oscar Township (Otter Tail County) and Akron Township (Wilkin County). Before 1951, an 1885 agreement between the two towns assigned maintenance of three miles to Oscar Township. In 1951, the counties took over the northern five miles as a county road. Oscar Township kept maintaining the remaining one mile alone, but felt Akron Township should share the cost. The Wilkin County town had relied on the prior AG opinion from September 1951, which had said the 1885 agreement still bound Oscar Township to maintain the one mile.

In 1959, the legislature enacted what became Minn. Stat. § 164.12. Subdivision 5 directs neighboring town boards to enter an agreement dividing responsibility for the remaining town-line road when part of the road has been taken over by a county. Subdivision 6 provides that when the town boards cannot agree, or when either town petitions because a previously-agreed division has proved inequitable, the county board (or both county boards for county-line roads) determines the proper allocation.

Assistant AG Kenneth Raschke, signing for AG Humphrey, said yes — the 1959 statute reaches the 1885 agreement. The opinion superseded the September 18, 1951 opinion (also designated 379C-8(c)) to the extent of any inconsistency.

The reasoning had two parts.

First, the AG read § 164.12, subd. 6 to apply retrospectively to pre-1959 maintenance agreements. The subdivision speaks in retrospective terms — "when a division previously agreed upon has proved inequitable" — and at the time of enactment in 1959 that phrase could only refer to agreements made before 1959. The remedial nature of the provision (giving towns a mechanism to reopen unfair divisions) reinforced the retroactive reading.

Second, the AG addressed why the Contract Clause did not block the result. Statutes are generally presumed prospective under Minn. Stat. § 645.21, and the Contract Clause prohibits impairing contractual obligations of private parties (Jacobsen v. Anheuser-Busch). But local governments are creatures of the state. Their contracts with each other do not carry the same constitutional protection from legislative modification as private contracts. La Crescent Township v. City of La Crescent (Minn. Ct. App. 1994) confirmed this principle in upholding a city's statutory annexation despite a pre-existing town-city agreement that arguably forbade it. Cf. Olsen v. Special School District #1 (Minn. Ct. App. 1988) (remedial statute given retroactive effect).

So Oscar Township remained responsible for maintaining the one mile under the 1885 agreement as it stood, but Oscar could either negotiate a modification with Akron or petition the Otter Tail and Wilkin county boards for a determination that the previously-agreed division had proved inequitable. The county boards would then redivide responsibility under § 164.12, subd. 6.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The town-line road statute (Minn. Stat. § 164.12) has been amended since 1998, and the framework for resolving town-versus-town maintenance disputes may have shifted. The principle that local government contracts can be modified by legislation without Contract Clause objection remains established Minnesota law.

Historical context: what the AG concluded

This is a short opinion working through three layered points: the operative statute, retroactive application, and the constitutional Contract Clause.

Section 164.12, subd. 5: divide the residue. When a county takes over part of a town-line road, the remaining road must be allocated between the two abutting towns. Subdivision 5 requires the two town boards to "divide responsibility for the remaining town road equally between them to the extent possible."

Section 164.12, subd. 6: county-board allocation. When the town boards cannot agree, or where one petitions because the existing division (whether by subdivision 5 agreement or an older inter-town contract) has proved inequitable, the county board (or both county boards for county-line roads) makes the determination. This is the mechanism the AG identified as available to Oscar Township.

Retroactive application. The statute does not say expressly that it reaches pre-1959 agreements, and Minn. Stat. § 645.21 presumes prospective application absent clear legislative intent. The AG overcame the presumption with two reasons:

• The phrase "when a division previously agreed upon has proved inequitable" looks backward by its terms. In 1959, the only agreements that could "previously" have been agreed upon were pre-1959 agreements. So the statute necessarily applied to existing divisions.
• The provision is remedial — it gives towns a tool to reopen inequitable divisions. Remedial statutes are generally given retroactive effect (citing Olsen v. Special School District #1).

Contract Clause. Statutes ordinarily cannot impair the contractual obligations of private parties, and Jacobsen v. Anheuser-Busch confirmed the protection for private contracts. But La Crescent Township v. City of La Crescent recognized that local governments do not have the same Contract Clause shelter against legislation. The 1885 Oscar-Akron agreement, as an inter-municipal contract between two creatures of the state, could be modified by the 1959 enactment of § 164.12 without offending the Contract Clause.

Effect on the 1951 opinion. The September 18, 1951 AG opinion (also numbered 379C-8(c)) said Oscar Township remained bound by the 1885 agreement to maintain the one mile alone. That opinion predates the 1959 enactment of § 164.12. The 1998 opinion supersedes it to the extent inconsistent — meaning Oscar may now invoke § 164.12, subd. 6 to seek a county-board determination, while still being responsible for the mile under the prior allocation until and unless the county boards revise it.

The remedy the AG identified: Oscar Township can negotiate a modification with Akron Township (subdivision 5), and failing that, can petition the Otter Tail and Wilkin County boards under subdivision 6 for a redivision based on inequity.

Common questions

Q: I'm a township supervisor stuck maintaining a town-line road that the neighboring town used to share. Can I force them to share again?
A: Under the 1998 opinion, the path was to invoke Minn. Stat. § 164.12, subd. 6 by petition to the county boards. The opinion deals with a town-line road where the county had taken over part of it, leaving the residue with the towns; the same procedure governs town-line road division generally under § 164.12. Confirm the current statute language and procedure before petitioning.

Q: We have an old contract from the 1800s assigning road maintenance one way. Does the Contract Clause protect it?
A: The AG opinion held that the Contract Clause does not protect inter-municipal contracts the way it protects private contracts, because municipalities are creatures of the state. La Crescent Township v. City of La Crescent supports that proposition. Legislation that modifies inter-municipal arrangements can be applied even to pre-existing agreements.

Q: Are county boards required to redivide responsibility 50-50?
A: The statutory standard under subdivision 5 was equal division "to the extent possible." Subdivision 6 gives the county board discretion to determine the "proper division" when the towns cannot agree or the prior division is inequitable. The county board can consider relative use, traffic, condition of the road, equipment availability, and similar factors.

Q: What is a town-line road, and how is it different from a county road or a state highway?
A: A town-line road runs along the boundary between two towns. It is maintained by the abutting towns (one or both), allocated by agreement or by county-board determination under § 164.12. A county road is taken over by the county and maintained at county expense. A state trunk highway is maintained by MnDOT.

Q: The opinion talks about "remedial" statutes getting retroactive effect. What does that mean in this context?
A: A remedial statute is one that provides a procedure or mechanism to address an existing problem. Section 164.12, subd. 6 is remedial in that it gives towns a procedure to redress an inequitable maintenance allocation. Minnesota courts treat remedial statutes as more readily applicable retroactively than substantive statutes that create new rights or duties.

Background and statutory framework

Minnesota Statutes Chapter 164 governs town and county roads. Section 164.12 specifically addresses town-line roads — the public ways along the boundaries between towns and the cost-sharing arrangements between them.

The statute is built around the idea that town-line roads benefit both abutting towns and the cost of maintaining them should be shared. Subdivisions 1 through 4 set general rules for the establishment, vacation, and joint-maintenance of town-line roads. Subdivision 5 governs the residue after a county takes over part of the road. Subdivision 6 provides the county-board fallback when the towns cannot agree.

The provision dates to 1959 in its current form. Its remedial purpose — to give towns a mechanism to reopen unfair divisions — distinguishes it from a pure substantive enactment. Under Minnesota statutory interpretation principles (Minn. Stat. § 645.21), the presumption of prospectivity yields where the statute speaks in retrospective terms or where the legislature has signaled remedial intent.

The Contract Clause question (Minn. Const. art. I, § 11; U.S. Const. art. I, § 10) is generally analyzed under the Allied Structural Steel Co. v. Spannaus framework. Minnesota courts have applied the framework to find that inter-municipal contracts receive less protection than private contracts, on the theory that municipalities are subordinate units of the state with no independent existence beyond their statutory authorization.

Hubert H. Humphrey III was Minnesota AG from 1983 through January 1999; he was finishing his tenure when this opinion was issued. Kenneth E. Raschke, Jr. signed as Assistant AG. The opinion bore the file note AG:62513.

Citations and references

Statutes:
- Minn. Stat. § 164.12 (1996) (town-line roads; allocation)
- Minn. Stat. § 164.12, subd. 5 (residue allocation after county takeover)
- Minn. Stat. § 164.12, subd. 6 (county-board determination)
- Minn. Stat. § 645.21 (presumption against retroactive statutes)

Cases:
- Jacobsen v. Anheuser Busch, Inc., 392 N.W.2d 868 (Minn. 1986) (Contract Clause; private contracts)
- La Crescent Township v. City of La Crescent, 515 N.W.2d 608 (Minn. Ct. App. 1994) (statute can modify inter-municipal agreement)
- Olsen v. Special School District #1, 427 N.W.2d 707 (Minn. Ct. App. 1988) (remedial statutes; retroactive effect)

Superseded:
- Op. Atty. Gen. 379C-8(c), September 18, 1951

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/379c8c-19981105.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

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 18, 1951 superseded. Minn. Stat. § 164.12 (1996).

379C-8(c)
November 5, 1998

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 1885, Oscar Township remained entirely responsible for maintaining the remaining mile of town road originally allocated to it. Op. Atty. Gen. 379C-8(c), September 18, 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 over?

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 of responsibility.

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 enactment 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 of the obligations of contracts, statutes are often held inapplicable to contracts in existence at the time of their enactment. See e.g., Jacobsen v. Anheuser Busch, Inc., 392 N.W.2d 868 (Minn. 1986). Such is not always the case, however, especially in cases involving agreements between units of local government. As creatures of the state, local governments and their contractual relationships with one another do not enjoy the same constitutional protections from legislative modification as private persons. See e.g., La Crescent Township v. City of La Crescent, 515 N.W.2d 608 (Minn. Ct. App. 1994), wherein the court upheld application of 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.

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, ..." (Emphasis added). At the time it took effect in 1959, that language could only have applied to agreements entered into prior to its enactment. Furthermore, the remedial nature of the provision argues in favor of its application to pre-existing divisions of responsibility. Cf. Olsen v. Special School District #1, 427 N.W.2d 707 (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 of responsibility.

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. 379C-8-C, September 18, 1951 is superseded to the extent inconsistent herewith.

Very truly yours,

HUBERT H. HUMPHREY III
Attorney General

KENNETH E. RASCHKE, JR.
Assistant Attorney General

AG:62513