Request By:
Mr. Calvin G. Grayson, P.E.
Secretary
Department of Transportation
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise the question as to the authority of the Department of Transportation to administer the Railroad Rehabilitation Program provided for in Title VIII, P.L. 94-210. You have made available to us the opinion of Ed W. Hancock, Deputy Secretary for Legal Affairs of your Department in which he says that the Department of Transportation has such authority. We agree.
Title VIII of the subject 1976 Railroad Revitalization Act relates to local rail service continuation. Section 803 of the act provides for local rail service assistance by providing federal financial assistance to states for rail freight assistance programs designed to cover: (1) the cost of rail service continuation payments; (2) the cost of purchasing a line of railroad or other rail properties to maintain existing or provide for future rail service; (3) the cost of rehabilitating and improving rail properties on a line of railroad to the extent necessary to permit adequate and efficient rail freight service on such line; and (4) the cost of reducing the costs of lost rail service in a manner less expensive than continuing rail service. Beginning with July 1, 1977, the federal assistance program is on a federalstate sharing basis. A state in order to be eligible for such federal aid must establish an adequate plan for rail service, and meet other criteria outlined in Section 804 of the Act, as a part of an overall planning process for all transportation services in such state, including a suitable process for updating, revising, and amending such plan. Such state plan must be administered or coordinated by a designated state agency and must provide for equitable distribution of resources. Such state agency must have the authority and administrative jurisdiction to develop, promote, supervise, etc., safe, adequate, and efficient rail transportation services and must employ sufficiently trained and qualified personnel for such program.
Pursuant to § 209 of the Kentucky Constitution, KRS Chapter 276 sets forth the authority of the Railroad Commission. Mr. Hancock pointed out in his opinion that in 1974 the General Assembly authorized the Railroad Commission to enter into agreements with the Federal Railroad Administration to administer the provisions of the Federal Railroad Safety Act of 1970 (45 U.S.C., § 421 et seq.). See KRS 276.550. In subsection (2) of the latter statute any agreements entered into pursuant to that authority require the approval of the Secretary of Transportation and the Secretary of the Executive Department for Finance and Administration.
First, it is our opinion that the Railroad Commission has not been given any authority to administer the Railroad Rehabilitation Program.
Next, it is our opinion that, under the broad structural statute relating to the function of the Department of Transportation as mentioned in KRS 176.020, and considering the work papers of the Department of Transportation reflecting its supervisory role as to all modes of transportation including rail (see p. 452 of the 1976-78 Executive Budget of Kentucky), the Railroad Rehabilitation Act program is the responsibility of the Department of Transportation. Our view is buttressed by the fact, as presented by the Department for Finance and Administration, that departmental work papers reflect on page 457 of the 1976-78 Executive Budget that of some 4 million dollars plus (general administration and support) of the appropriation for transportation planning the sum of $200,000 was allocated as a nonrecurring expansion fund for an in-house commodity flow study and for grants to area development districts for nonhighway transportation planning. Part of the $200,000 was and is being used by the office of transportation planning to establish a state rail plan, which is a qualifying part of the Railroad Rehabilitation program.
The case of
Commonwealth v. Johnson, 292 Ky. 288, 166 S.W.2d 409 (1942) rules that the constitution lays down no ironclad rules as to the form appropriations may take. The court said in effect that there is no constitutional requirement that appropriations be specific or definite in amount. See § 230, Kentucky Constitution (and KRS 41.110), requiring an "appropriation" for money flow out of the state treasury. Thus every line or appropriations breakdown of various budget units are not required to be in the Executive Budget or appropriations bill of the General Assembly. The "work sheets" underlying the preparation of the Executive Budget must be considered a part of the budget. The purpose of § 230, Constitution, was to prevent the expenditure of the state's money without consent of the legislature.
Ferguson v. Oates, Ky., 314 S.W.2d 518 (1958) 521.
While an explicit general statute would be the optimum situation, we believe that the appropriation for "Transportation Planning" and the accompanying narrative in the Executive Budget as aforementioned sufficiently identify the legislative intent as it relates to the Railroad Rehabilitation program.
We assume from your letter that your only question relates to the authority of the Transportation Department to administer this program, and that any incidental constitutional questions arising out of the specific railroad use of such funds are not involved in your inquiry.