Request By:
Mr. Fred B. Creasey
Executive Director
Ky. Association of Counties
205 Capital Avenue
Frankfort, Kentucky 40602
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your questions, about which you request our opinion, emerge from Section 14 of H.B. 973, enacted in the 1980 regular session, effective July 1, 1980, upon the approval of the Governor, which signature of approval was given on April 3, 1980.
Section 14, creating a new section of KRS Chapter 179 reads in part [(1) and (2)]:
"(1) On and after the fiscal year beginning July 1, 1980 and each fiscal year thereafter, the department of finance shall pay to each county its pro rata of any funds appropriated and any unexpended balance of funds appropriated for construction, reconstruction, improvement, and maintenance of county roads and bridges. During each fiscal year, the department of finance shall make quarterly payments to each such county of the funds allocated pursuant to Section 12 of this Act.
"(2) The expenditure of any money received by the county pursuant to the provisons of subsection (1) of this section shall be made solely for the purpose of construction, reconstruction, improvement, and maintenance of county roads and bridges. "
Your question reads:
"Is it your opinion that these funds may be expended for:
(1) Labor, so long as it applies only to county roads and bridges?
(2) Materials purchased for county roads and bridges?
(3) Equipment purchases for county roads and bridges?
(4) Equipment rentals for county roads and bridges?
Items (3) and (4) of this letter relate to purchasing new trucks, pavers, graders, etc. as opposed to renting this equipment for specific projects."
Section 14 directs that on and after the fiscal year beginning July 1, 1980, and each fiscal year thereafter, the department of finance shall pay to each county its pro rata of any funds appropriated and any unexpended balance of funds appropriated for "construction, reconstruction, improvement, and maintenance of county roads and bridges. " (Emphasis added). During each fiscal year, the department of finance shall make quarterly payments to each such county of the funds allocated pursuant to Section 12 of this Act." Section 12, as a new section in KRS Chapter 177, provides similarly that the Finance Department shall pay to each county containing an unincorporated urban place [an area outside of incorporated cities having a population of 2500 or more] its pro rata share of any funds appropriated and any unexpended balance of funds appropriated for construction, reconstruction, and maintenance of urban roads and streets.
In connection with the gasoline and other fuels excise taxes used to fund rural and secondary roads, county roads, and roads in counties having unincorporated urban places, see KRS 138.220, 138.565, 138.660 and 234.320.
Under KRS 177.320(2), as amended by Section 9 of H.B. 973, 15.6% of all funds arising from the imposition of the above listed excise fuel taxes, on and after July 1, 1980, shall be set aside for the construction, reconstruction and maintenance of county roads and bridges. Under KRS 177.365, as amended by Section 10 of H.B. 973, 6.7% of all amounts received from the imposition of the subject excise fuel taxes shall be set aside by the Department of Finance for the construction, reconstruction and maintenance of urban roads and streets. On and after July 1, 1980, and each fiscal year thereafter, the department of finance shall pay to each county containing an unincorporated urban place its pro rata share of any funds appropriated and any unexpended balance of funds appropriated for construction, reconstruction and maintenance of urban roads. The direct payments to the county for county roads and bridges and urban roads shall be quarterly. Section 12(1), H.B. 973.
Thus the county will receive money derived from the above mentioned fuels excise taxes to be spent on the construction, reconstruction, and maintenance of county roads and urban places roads.
The use of such revenue is controlled by Section 230, Kentucky Constitution. It reads:
"No money shall be drawn from the State Treasury, except in pursuance of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published annually. No money derived from excise or license taxation relating to gasoline and other motor fuels, and no moneys derived from fees, excise or license taxation relating to registration, operation, or use of vehicles on public highways shall be expended for other than the cost of administration, statutory refunds and adjustments, payment of highway obligations, costs for construction, reconstruction, rights of way, maintenance and repair of public highways and bridges, and expense of enforcing state traffic and motor vehicle laws."
The court wrote in Keck v. Manning, 313 Ky. 433, 231 S.W.2d 604 (1950) 606, that "The purpose of the 1944 amendment [Sec. 230, Const.], often referred to as the 'anti-diversion amendment', was not to curtail the road program but to make secure the funds with which to continue it. . . . The amendment was supported by the motor vehicle interests to prevent this fund, raised by special taxes levied against them, from being put to uses having no connection with the construction, maintenance and administration of the highway system." Elsewhere in Keck the court pointed out that the term "construction and maintenance" was broad enough to include "everything appropriately connected with safety and convenience of traffic and incidental to the construction and maintenance of an efficient highway system." (Emphasis added).
The term "construction", by statute, includes reconstruction and improvement. KRS 177.010(2) and 178.010(1)(a).
It is our opinion, from the foregoing analysis and authorities, that the county's road funds may be expended, as applied to county roads and bridges and county urban place roads and bridges, for labor, materials purchased, equipment purchased, and equipment which the fiscal court finds it necessary to rent for one or more specific road projects. All of the items you listed belong logically under and are incidental to the construction, reconstruction, improvement, and maintenance of county and urban place roads and bridges, as mentioned in the constitution and allied statutes.