Request By:
Mr. James A. Knight
Johnson County Attorney
Courthouse Annex
Paintsville, Kentucky 41240
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question concerns a road to a public cemetery. The question was stated as follows in your letter:
"May a fiscal court expend county funds for the maintenance of roads to public cemeteries as opposed to private or family cemeteries?
"The public cemetery would be one in which any deceased person could be buried without restriction or regardless to family or any other restriction."
The fiscal court has the authority to spend county funds on "county roads", as defined in KRS 178.010(1)(b). The term "county roads" as so defined, means public roads which have been accepted by the fiscal court of the county as a part of the county road system. The court has held that a formal order of fiscal court is necessary to establish a county road.
Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979) 41. Also in Sarver the court explained that it is not necessary to the establishment of a proposed county road that it be an existing public road, or, indeed, that it be an existing road or passway of any kind.
It is our opinion that the fiscal court may expend county funds for the maintenance of the road leading to the public cemetery, provided that such road has been taken into the county road system by way of a formal order of the fiscal court. Where such a road has been formally made a county road, it is open to travel by the general public. Under the circumstances given, if such road was established by a formal order of fiscal court, it cannot be said that the action was arbitrary or in violation of §§ 3 and 171 of the Kentucky Constitution, in view of the apparent public purpose to be subserved. The constitutional sections 3 and 171 require that taxes must be used, by a particular tax levying unit, for public purposes only. See