Request By:
Mr. James Brock
Adair County Judge/Executive
Courthouse
Columbia, Kentucky 42728
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have been requested to write us for an opinion on the disbursement of funds for the roads in your county. Adair County is composed of seven magisterial districts. The magistrates have been dividing the road fund equally between the seven districts. Some of the magistrates on the fiscal court now desire, for the new fiscal year, to divide the money according to the number of miles of county roads in their districts. This would mean that some magistrates would have two or three times as much money as other magistrates, since some districts have more county roads in mileage than others.
Your question is whether or not it is legal to disburse county road fund money out of the county treasury according to the number of miles of the roads in each district, disregarding the number of people and voters in each district. You say that within the last two years the county has been so reapportioned that there are roughly the same amount of people in each magisterial district.
In interpreting KRS 179.400, 1 in
Madison Fiscal Court v. Edester, 301 Ky. 1, 190 S.W.2d 695 (1945), the court ruled that the statute was not intended to impose any duty upon fiscal courts to make repairs or improvements on any particular road or roads. The court wrote this at p. 696:
"It places upon the county the duty generally to keep its roads in repair and to appropriate the money that is available for that purpose, but it is within the discretion of the fiscal court to determine the road or roads which shall be improved and the time and method of such improvements."
Elsewhere in Madison Fiscal Court, above, the court said:
"'The fiscal court of every county is, in effect, a legislative board, invested with the power by law of making appropriations in cases where the needs of the county require it; and while they may neglect their duties, or omit to improve the roads, or to make other appropriations necessary for that purpose, it is beyond the power of a judicial tribunal to interfere and determine what improvements should be made, and the extent of the expenditure necessary for that purpose.'"
A fiscal court order appropriating money for county roads must be reasonably definite and certain. The roads to be improved or constructed must be designated with particularity such that there is no doubt as to what roads are involved and as to precisely what will be done by way of construction or improvement. This is regardless of the method of determining the amount of the appropriation as to various county road segments.
McKechnie v. Canada, 198 Ky. 807, 250 S.W. 111 (1923) 113. See also KRS 67.080(9), relating to the fiscal court's power to provide county roads.
The proper use and the allocation of the county road fund lies within the sound discretion of the fiscal court. The courts are not inclined to reverse their actions relating to appropriations and allocations unless the facts reveal that they have acted arbitrarily or unreasonably in making such appropriations and allocations.
In any event, if such matter were to ever come before the courts, the court would have to determine whether or not under the total circumstances the fiscal court acted arbitrarily in fact. See Section 2 of the
Kentucky Constitution and Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963). On the fact of it, even though there are no precise statutory standards the sole use of the mileage factor, to the exclusion of any other pertinent or demographical factors, might be deemed arbitrary or unreasonable. Compare KRS 177.360, relating to the state's allocation of funds for rural and secondary roads. There several factors are considered, including population, mileage, and square-mile territory. However, it would be up to the courts as to whether or not in your situation the fiscal court would be acting arbitrarily by using the mileage factor to the exclusion of any other factors, such as those listed in KRS 177.360. We cite KRS 177.360 as an example of legislative policy as to what is fair and equitable in road building.
Footnotes
Footnotes
1 The statute requires the fiscal court of any county receiving state aid to appropriate sufficient money to keep all county roads in good repair and free from obstructions.