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06/01/83 E.J.H. v. STATE WISCONSIN

June 1, 1983

IN THE INTEREST OF E.J.H., DELINQUENT CHILD UNDER 18 YEARS OF AGE: E.J.H., APPELLANT,
v.
STATE OF WISCONSIN, RESPONDENT



Appeal from an order of the Circuit Court for Racine County. On certification from Court of Appeals.

Heffernan, J.

The opinion of the court was delivered by: Heffernan

This is an appeal of a Dispositional order of the circuit court for Racine county, STEPHEN A. SIMANEK, Circuit Judge, which adJudged E.J.H., a minor, to be delinquent for operating a motor vehicle without a valid driver's license, in violation of sec. 343.05(1), Stats. *fn1 Because the appellant is a juvenile, proceedings were instituted under the Children's Code, ch. 48, Stats. (1979). A petition for the determination of her status as an alleged delinquent child was filed on May 15, 1981, pursuant to the provisions of sec. 48.12. The Dispositional order, the final order in a delinquency procedure (see secs. 48.34, 48.345, and 48.355), was filed on June 30, 1981. It is this order that is before us on appeal. This court accepted the appeal on certification pursuant to sec. 808.05(2).

On April 30, 1981, E.J.H. was riding her motorbike near the paved portion of West Frontage Road in Racine county, Wisconsin. She was stopped by two Racine county deputy sheriffs, who conducted a driver's license check. The check revealed that E.J.H., who was fifteen at the time, did not have a driver's license. The deputy sheriffs ticketed her for violating sec. 343.05(1), Stats., which forbids any person to "operate a motor vehicle upon a highway in this state unless the person has a license . . . ."

There was conflicting testimony at the hearing. E.J.H. testified that she was driving on the grassy portion within the platted right-of-way of West Frontage Road, not on the paved portion or the gravel shoulder. A deputy sheriff testified that he observed E.J.H. operate her motorbike on the shoulder of the road.

The trial court concluded that, for the purposes of sec. 343.05(1), Stats., "highway" means the entire right-of-way, including the area beyond any shoulder. Thus, it was not necessary for the court to determine whether or not E.J.H. actually operated her vehicle on the gravel shoulder. The court found that E.J.H. had operated a motor vehicle on a highway without a driver's license and, therefore, adJudged her to be a delinquent child.

The trial court entered a Dispositional order prohibiting E.J.H. from obtaining a driver's license until sixty days after her sixteenth birthday. E.J.H. appealed. The Dispositional order was stayed pending appeal.

The question on appeal is whether "highway" in sec. 343.05(1), Stats., means the entire platted or dedicated right-of-way of a public road or means only the paved (ordinarily traveled) portion of a road plus the shoulders, if any.

"Highway" is defined in sec. 340.01(22), Stats., as:

"All public ways and thoroughfares and bridges on the same. It includes the entire width between the boundary lines of every way open to the use of the public as a matter of right for the purposes of vehicular travel. . . ."

That definition controls the meaning of "highway" in sec. 343.05(1), Stats., because no other definition is specifically provided. Sec. 343.01(1).

The meaning of "highway" turns on whether the phrase, "open to the use of the public as a matter of right for the purposes of vehicular travel," modifies "way" or whether it describes the relevant width. The location of the phrase in the definition indicates that it modifies "way." Thus, the definition should be read to mean, "the entire width between the boundary lines of every public road," that is, the entire right-of-way. That interpretation also is consistent with the use of the phrase, "boundary lines," which implies a legal boundary rather than something as imprecise as the edge of the shoulder.

E.J.H. contends, however, that the definition should be read to mean, "that portion of every public road which is intended for the purposes of vehicular travel." This, she asserts, would be limited to the roadway itself plus the shoulders, if any. We conclude that "highway" in sec. 343.05(1), Stats., includes the entire right-of-way.

The definition of "highway" was revised in 1957 as part of a new motor vehicle code. The note to sec. 340.01(22), Stats., by the Legislative Council, ...


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