Request By:
Mr. Vic Hellard, Jr.
Director
Legislative Research Commission
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question, on which you desire our opinion, was stated with the following explanation:
"The Transportation Subcommittee of the Interim Joint Committee on Appropriations and Revenue has requested that I obtain an Attorney General's Opinion in regard to the following question:
"'Does the Kentucky Department of Transportation have authority to classify a county road as a rural road and thereby divert rural and secondary road funds for projects on county roads and bridges? '
"The district highway engineers have indicated to our staff that there are approximately fifteen thousand miles of rural and secondary roads in the state, while there are approximately forty-four thousand miles of county roads and bridges. Two cents of the nine cent motor fuel tax is set aside for rural and secondary roads, while county roads and bridges receive nine-tenths of one cent of the nine cent tax on motor fuels. This apparently is the reason for the diversion of funds from the rural and secondary fund for projects on county roads and bridges. "
Under KRS 177.320 two-ninths (2 of 9 ) of the gasoline tax revenue must be set aside for the construction, reconstruction and maintenance of "secondary and rural roads", and for no other purpose. (Emphasis added). The statute also provides that nine-tenths of one ninth of such revenue (9/10 of 1 ) must be set aside for the construction, reconstruction and maintenance of "county roads and bridges. " (Emphasis added).
The specific allocation by the Bureau of Highways of funds for rural and secondary roads is dealt with in KRS 177.360, establishing a specific formula.
Judge Cullen, for the court, in
Jefferson County v. King, Ky., 479 S.W.2d 880 (1972) 881, wrote that "'Secondary and rural roads' within the meaning of KRS 177.360 are such as lie outside of cities, towns and urban areas having a population of 2,500 or more, and of course do not include state or federal highways. " He said the "County Road Fund" consists of such portion of the State Road Fund as is appropriated biennially for the construction, reconstruction, improvement and maintenance of county roads and bridges. See KRS 179.410 to 179.430. The allocation of funds for county roads and bridges, as mentioned in KRS 177.320(2), is the responsibility of the Department of Transportation. See KRS 179.410. Judge Cullen added that "County roads and bridges" for the purpose of distribution of the county road fund are all public roads and bridges outside of incorporated cities, except primary roads and federal parkways and bridges thereon, KRS 179.010."
"County roads" are public roads which have been accepted by the fiscal court of the county as a part of the county road system. KRS 178.010.
Under KRS 177.340, where fiscal court and the Bureau of Highways disagree on the selection of any secondary and rural road for construction, reconstruction or maintenance, the selection of such road can be made by the Bureau of Highways, in its discretion, where the Bureau deems it essential to a system of secondary highways. Secondary or rural roads, where there is an agreement or where there is no agreement with the affected county, may become a part of the state highway system, at the discretion of the Bureau of Highways.
It is our opinion that the rural and secondary fund money can be spent on a road which is a part of a county road system, as defined in KRS 178.010, even though county road aid funds authorized by KRS 177.320(2) [county roads and bridges] and 179.410-179.430 can be spent only on such county roads. The significant point is that under the above definitions a "secondary and rural" road for purposes of fund distribution may include a county road, but a "county road" can be only a road meeting the definition under KRS 178.010 and 179.010(1).
The answer to your question is that under the above definitions of what constitutes a secondary and rural road and a county road, the Bureau of Highways and fiscal court by agreement may spend "secondary and rural roads" money on a "county road" . Where there is no agreement, the Bureau of Highways can spend "secondary and rural roads" money on a "county road" . But the "county roads" money must be spent strictly on "county roads", as so defined. In other words, the term "secondary and rural" is broad enough to include "county roads", but "county roads" are not necessarily "secondary and rural" , especially since some 10,000 miles are in a special system marked "rural secondary" , and the counties have no operative responsibility for that system; and technically the 10,000 miles system is not a part of county road systems as envisioned in KRS 178.010.