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
The present draft of the Kentucky State Rail Plan required by PL 94-210, Section 803 (49 USC § 1654(j)), contains provisions for the possible purchase or lease of rail properties in order to maintain rail service in the event a railroad acquires abandonment approval from the Interstate Commerce Commission.
You request our opinion as to whether or not Section 177 of the Kentucky Constitution, or any other section thereof, prohibits the Commonwealth of Kentucky from either purchasing or leasing existing railroad property in order to continue railroad service.
49 U.S.C. § 1654(f), as a part of the Federal Railroad Rehabilitation program, specifically provides for financial assistance to states from the Federal Transportation Department for rail freight assistance programs that are designed to cover, inter alia, the cost of purchasing a line of railroad or other rail properties to maintain existing or provide for future rail service. We pointed out in OAG 78-5 that the Kentucky Department of Transportation is the agency authorized by the General Assembly to administer the Railroad Rehabilitation program provided for in Title VIII, P.L. 94-210. Also see KRS 174.020 and the state budget for 1978-79 and 1979-80, containing appropriations out of the general fund for the purpose of implementing P.L. 94-210. Specifically see H.B. 229, Ch. 167, 1978 Acts [Budget], Part I, Item 77c., for rail transportation, which provides that in the appropriation listed $420,000 in fiscal year 1978-79 and $720,000 in fiscal year 1979-80 are appropriated for the purpose of establishing the Railroad Development Program.
See 49 U.S.C. § 1651, a congressional declaration, in establishing the Department of Transportation, that the general welfare, the economic growth and stability of the nation and its security require the development of national transportation policies and programs conducive to the provision of fast, safe, efficient and convenient transportation at the lowest cost.
Section 177, Constitution, prohibits the Commonwealth from giving or lending its credit to any corporation or individual. It expressly states that "nor shall the Commonwealth construct a railroad or other highway. "
As we said in OAG 78-103, the legislature has in effect declared state aid in the revitalization of railroads to be a public purpose. This legislative declaration is understandable in view of the compelling necessity for state and federal aid in terms of promoting the public and traffic safety and providing continuous rail freight service. The news media carries stories repeatedly of freight car derailments involving hazardous substances. The news abounds in 1 stories about inadequate coal and grain hauling arrangements. Indeed the public safety and welfare and our economic life are at stake. The courts have been inclined to uphold the public purpose declared by the General Assembly where it can reasonably do so.
Butler v. United Cerebral Palsy of Northern Ky., Inc., Ky., 352 S.W.2d 203 (1961) 205.
The question is: What is meant by the language in § 177 "Construct a railroad" ?
The courts have established the principal that where a statute defines words used therein the court looks to the legislative definition rather than dictionaries or common usage.
Wohrley, Inc. v. Commonwealth, Dept. of Rev., Ky., 495 S.W.2d 173 (1973) 174. That principle applies equally to constitutional language. Obviously where the constitution, as is the case here, does not define the phrase "construct a railroad" , the courts, if presented with the question, would have to residually resort to the dictionaries or common usage.
The word "construct" is defined in Webster's New World Thesaurus (Charlton Laird), p. 118, as "to build a physical structure." Other definitions of the word "construct" are: "to make, erect, fabricate." Ibid. The word "construct" is defined by Black's Law Dictionary, p. 386, as "to build, erect, put together."
Judge Montgomery, in Thompson v. Bracken County, Ky., 294 S.W.2d 943 (1956) 946, wrote that "Simple words when considered in a statute are generally accorded their ordinary and accepted meaning." Elsewhere he wrote that "The word 'construct' is defined to mean: 'to build, form, or make.' Webster's International Dictionary, 2nd Edition." The court therein noted a distinction in statutes concerning highways and roads. The word "improvement" has been held to embrace construction or reconstruction work of a character distinguished from repair. The court said that "maintain" is synonymous with "repair" . In connection with city streets, the court in
City of Covington v. Bullock, 126 Ky. 236, 103 S.W. 276 (1907) 278, held that "construct" means to build; "reconstruct" means to rebuild, to build over again. To resurface means to repair. In connection with the subject language of § 177, Constitution, one of the delegates of the 1890 Constitutional Convention, stated on the floor that he was perfectly willing to vote aye as far as the building of railroads is concerned, but as to other highways, he was not in favor of it. Kentucky Constitutional Debates, Vol. 2, (1890), p. 2768. Obviously the delegates were equating "building" with "constructing."
It can be noted that the restriction against the state's building highways [§ 177, Const.] was held to be removed or nullified by the 1909 amendment, which became § 157a of the constitution.
Standiford Civic Club v. Commonwealth, Ky., 289 S.W.2d 498 (1956) 499, 500. There the court spoke in terms of "building public roads", (emphasis added), as authorized by § 157a, Constitution.
Even if the word "construct" were construed to embrace a lease of railroad right of way, the courts could hold that the lease would impress the railroad right of way with a public character, such that the railroad segment would be for the term of the lease a "public road." Under that analysis § 157a would broadly apply. See
Mitchell v. Knox County Fiscal Court, 165 Ky. 543, 177 S.W. 279 (1915) 282; and Standiford Civic Club v. Commonwealth, above.
It is our opinion that § 177 of the Kentucky Constitution, which literally prohibits the construction of a railroad by the state, would not apply to either the purchase or lease of railroad property or right of way effected in implementation of the national and Kentucky state rail plans. We are unaware of any other constitutional provision which would prohibit such acquisitions.
Footnotes
Footnotes
1 See 64 K.K.J. 601, 606-607, stating that many problems plague rail transportation of coal: "economic misfortune, deteriorating track, and old equipment, but perhaps the greatest problem of all is a car shortage."