Request By:
Mr. C. W. Goodman
Executive Vice President
C. B. Goodman & Sons Lbr., Inc.
Route #2
Hickory, Kentucky 42051
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Marshall County Fiscal Court some time ago passed an ordinance requiring persons or corporations engaging in the truck hauling of heavy loads calculated to cause damage to county roads to post a bond with the county judge/executive. The amount of the bond is determined by the county judge/executive and county road supervisor, and must be sufficient to restore the road to the condition that it was in prior to the hauling operations.
Since you are running a logging operation and hauling logs over county roads, you were required to post a $5,000 bond. You ask whether this bond ordinance is legal.
We assume you are anticipating running overweight trucks over county roads. See KRS 189.221(4). Otherwise, where a vehicle is properly equipped and operated under the statutes and contains no devices prohibited by statute and where the vehicle loads are of proper weight, generally the vehicle operator or owner is not answerable in damages to the county in contributing to the wear and deterioration of the road. The right of action accrues where road repairs are necessitated because of a wrongful, negligent or unreasonable use of the public way.
Commonwealth, Dept. of Highways v. Pine Coal Co., Ky., 414 S.W.2d 134 (1967). In addition, the county, through fiscal court, can sue to enjoin repeated violations of the truck weight statute resulting in damages or obstruction to county roads. See
Webb v. Sturgill, Ky., 341 S.W.2d 66 (1960); KRS 189.221, and 189.230(1). Thus the state in enacting the weight limit statute, KRS 189.221, is by legislation preventing the wear and hazards due to excessive size of vehicles and weight of load.
Ashland Transfer Co. v. State Tax Commission, 247 Ky. 144, 56 S.W.2d 691 (1932).
The fiscal court has exclusive authority over county roads [see KRS 178.010], including the authority to construct, maintain and operate such roads in the public interest of the health, safety, welfare and convenience of the inhabitants of the county. KRS 67.080(2)(b) and 67.083(3)(t). But we must keep in mind that § 144 of the Kentucky Constitution merely creates fiscal courts, and the defining or prescribing of its powers are left to the legislature, which powers will be interpreted by the courts.
Lincoln Nat. Bank v. County Debt Commission, 294 Ky. 642, 172 S.W.2d 463 (1943) 467.
The Supreme Court of Kentucky, in Fiscal Court, Etc. v. City of Louisville, Ky., 559 S.W.2d 478 (1977), reiterated the ancient principle that all power exercised by a fiscal court must be expressly delegated to it by statute. To make the rule more specific and concrete, the court wrote in that case at page 482 that "The thoughtful, purposeful and deliberate delegation of a known power is required of the General Assembly."
It is our opinion that there is no express statutory authority for a fiscal court's enacting an ordinance covering the overweight truck situation and providing that using haulers post a bond. In practical effect such an ordinance would say that "we anticipate that you are going to violate the overweight law, and this bond provision merely anticipates road damage as a result of your unlawful hauling. " And the ordinance is drafted, we understand, on a day-by-day or permanent basis.
KRS 189.270, prior to the 1976 amendment, provided that the Department of Highways could issue special permits to exceed weight limitations of vehicles on state highways on an emergency basis, and could require, as a condition for issuing the permits, the applicants to give bond to indemnify the state or counties against damage to the highways or bridges. The amendment took motor trucks, tractors, semi-trailers and trailers, out of the statute. In
Hancock v. Terry Elkhorn Mining Company, Inc., Ky., 503 S.W.2d 710 (1974), where the Department of Highways had issued permits to truck haulers of coal on a day-by-day basis (not on an emergency basis), the court held that the department's permits were void, since it had exceeded its "emergency" authority under KRS 189.270. The court said the department did not have carte blanche authority to issue overweight permits. The statute was designed to accommodate only the emergency period or situation. If the statute were not designed for an emergency only, the court wrote, then the overweight permits statute would negate or override the weight limitation law.
The ordinance of the county in question thus is in conflict with the statutory law relating to the regulation of roads and overweight vehicles. See KRS 67.083(6), providing that if a county is authorized to regulate an area which the state also regulates, the county government may regulate the area only by enacting ordinances which are consistent with state law or administrative regulation.
You must understand that we are not, by concluding that this overweight truck and bond provision ordinance is not valid, inviting you to go out and violate the overweight law. You will be held responsible for such action, if it occurs, and will be subject to various remedies of the county, some of which we alluded to earlier herein.
Of course we are aware of the dilemma posed by economic compulsion for overweighted trucks, the weight limit statutes, and the necessity for a county's maintaining adequate road systems for all the people. However here we are delineating the area in which a county cannot regulate [an overweight truck and bonding ordinance] as well as pointing up the responsibility of the hauler users to obey the statutes or suffer the legal consequences.