Request By:
Mr. John R. Elfers
Kenton County Attorney
Room 304 City County Building
Covington, Kentucky 41011
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion as to whether or not the Fiscal Court of Kenton County may legally expend county money in sharing in the construction costs of a railroad bridge that is part of Richardson Road, a Kenton county road which extends into Boone County. The bridge is entirely located in Boone County. However, it is used primarily by residents of Kenton County in the area in which a substantial subdivision project is located. When you say "railroad bridge" , you are referring to a county road bridge, a part of Richardson Road, which bridge extends over two parallel railroad tracks of the Southern Railroad. Richardson Road extends over the railroad tracks (the bridge) and intersects U.S. 25. The bridge is a short distance from the Kenton-Boone County common boundary line. A bridge is part of a county road, where the bridge is merely an integral part of the county road, and where the road merely continues across the bridge which, in this case, extends over and above railroad tracks. Denton v. Pulaski County, 170 Ky. 33, 185 S.W. 481 (1916) 482.
You have written that the railroad bridge is owned by Southern Railway, who has advised both the fiscal courts (Boone and Kenton) that they intend to do nothing to upgrade the bridge. It is a wooden bridge, deteriorating, wherein two cars can pass at one time. It is a traffic hazard, with no sight distance and a five ton weight limit. Richardson Road is the only access to the Boone County Industrial Park, the commercial area of Boone County, and I-75, available to Kenton County residents in the southern end of Kenton County. It is estimated that Richardson Road is used by 3,000 to 3,500 residents of Kenton County daily. Both Boone and Kenton Fiscal Courts agree that more Kenton County residents use this road and bridge generally than Boone County residents.
A county, through its fiscal court, "possesses only such powers as are expressly given, or necessarily implied, in statutes constitutionally enacted." Jefferson County v. Jefferson Fiscal Court, 274 Ky. 91, 118 S.W.2d 181 (1938) 184; and Fiscal Court v. City of Louisville, Ky., 559 S.W.2d 478 (1977) 481, 482.
The authority of the fiscal court to expend county money on a road or bridge located in another county would require an express statutory provision. There is nothing in KRS 67.080(2)(b) and 67.083(3)(t), relating to county roads and bridges, which suggests any extraterritorial application of the road and bridge power. KRS 178.250 through 178.270 cover work on joint bridges and roads by fiscal courts of two counties; but that involves roads and bridges on a common boundary line. Note that KRS 178.115 (establishing county roads) involves a road or bridge "in such county". (Emphasis added). Cf. Kenton County Fiscal Court v. Richards, 291 Ky. 132, 163 S.W.2d 302 (1942), in which Kenton County Fiscal Court established an airport in Boone County pursuant to an express statutory provision.
In addition to the rule of strict construction of municipal powers, mentioned above, Dr. Roy Owsley, in his article, "The Kentucky Interlocal Cooperation Act" , in 51 K.L.J. 22 (1962-63), points out two related rules that militate against joint local government efforts in the absence of specific legislation at page 27:
"The first is the general rule that 'a municipal corporation's power ceases at the municipal boundaries and cannot, without specific legislative authority, be exercised beyond its geographical limits.' The second is the 'self-evident proposition that two lawfully and fully organized public or municipal corporations cannot have jurisdiction and control at one time of the same population and territory and exercise like or similar powers in the same boundaries.'"
See, in connection with the matter of extraterritoriality, City of Sedalia v. Shell Petroleum Corporation, (C.C.A. -8, 1936) 81 F.2d 193, 196; and Rash v. Louisville & Jefferson County Met. S. Dist., 309 Ky. 442, 217 S.W.2d 232 (1949) 237.
Clearly a county cannot unilaterally spend its money on a county bridge located in another county. However, KRS 65.240 explicitly provides that any power capable of exercise by a political subdivision of Kentucky "may be exercised and enjoyed jointly" with any other political subdivision. (Emphasis added). Such a statute envisions a broad application of the principle of extraterritorial authority. Thus since Boone County can unilaterally build a bridge in Boone County, and Kenton County can unilaterally build a bridge in Kenton County, by the use of KRS 65.240 both counties can practice the same kind of authority, although the bridge is located in only one county, i.e., Boone. It is readily conceivable, we think, that the statute contemplates joint action by two or more political subdivisions (here, counties) even though the geographical situs of the government action is only in one of the counties signatory. Of course the statute also contemplates that the joint exercise of authority must be based upon a governmental function of common and mutual interest to the participating counties. In the situation you present, Boone is the county adjoining Kenton; and a substantial number of citizens of each county have a stake in this matter of proceeding along the road system in safety.
It is our opinion that, exclusive of the Interlocal Cooperation Act, there is no statutory authority for the Kenton Fiscal Court to expend money on this bridge located in Boone County. Under KRS 65.240, however, we are of the opinion that Boone County and Kenton County may execute an interlocal agreement wherein both counties may expend their general or road fund monies in the reconstruction or repair of the bridge in question. This, of course, is subject to the availability of such funds in the county budgets and funds which were not previously committed to specific road and bridge projects. See, in that regard, the restrictions of §§ 180 and 230 of the Kentucky Constitution, and KRS 68.100.
In applying the Interlocal Cooperation Act to this situation, we believe that our construction of KRS 65.210, et seq., is in the light of reason and would involve practical and worthwhile results for both counties. Kirkman v. Williams' Ex'r, 246 Ky. 481, 55 S.W.2d 365 (1932).