Request By:
Honorable John R. Cox
Rowan County Attorney
P.O. Box 9
Morehead, Kentucky 40351
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You presented the following question in your letter:
"Is it proper for the County Attorney to bring a civil action to enjoin the Fiscal Court from accepting a certain driveway or short roadway into the county road system, when it is clearly evident that said road is private in nature and the public will not benefit in any manner whatsoever from its inclusion into the county road system?"
See KRS 178.010, as to the definition of "county roads".
Under KRS 178.080, in the establishing of a county road, the advantages and disadvantages of the proposed work to the individual and to the public must be considered by the fiscal court. Above all, the fiscal court must determine whether the proposed road work will further the interests of the general public. This calls for a sound judgment decision on the part of the fiscal court.
Under the guidelines of KRS 178.080 if it substantially appears after the public hearing that the fiscal court has acted arbitrarily in authorizing the establishing of the road, a taxpayers suit could be brought in circuit court, appealing the action of the fiscal court. See § 2, Kentucky Constitution, and Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963). Since the county attorney represents the county [see KRS 69.210], he also could bring such action, for in either case a demand on fiscal court to bring such action would be, on its face, futile. Estill County v. Noland, 301 Ky. 204, 191 S.W.2d 223 (1945). In addition, KRS 178.100 expressly provides that a party aggrieved by a decision of fiscal court to order a new road, etc., may bring an action in circuit court to contest the decision of the fiscal court.
The county attorney is the legal representative of the county, and it is his duty to see that the county's funds are not wrongfully appropriated. Johnson County v. High Test Oil & Gas Co., 267 Ky. 760, 103 S.W.2d 272 (1937) 273. Also see KRS 69.210 (2) [county attorney shall oppose all unjust or illegally presented claims].
If the evidence would clearly reflect that no benefit to the general public would accrue from the building of the road segment, then such a road establishment would be unconstitutional if based only on a private purpose. See §§ 3 and 171, Kentucky Constitution. The tax revenues of the county can only be spent for a public purpose. Shanks v. Commonwealth ex rel Daugherty, 219 Ky. 212, 292 S.W. 837 (1927).
Under the assumption that the evidence would indicate that the proposed road would be of private benefit only, you as county attorney could, on behalf of the county, where the fiscal court votes to establish the road as a county road, file an injunctive suit in circuit court, seeking the enjoining of any action implementing the decision to establish the road. In such case irreparable injury and inadequate remedy at law must be pleaded and proved. Bowles v. Major, 301 Ky. 604, 191 S.W.2d 926 (1946).