Request By:
Honorable Benny Ray Bailey, Ph.D.
State Senator
Route #1, Box 102A
Hindman, Kentucky 41822
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have written that during the past week, there has been some discussion among the legislators about the removal of the tolls from the Mountain Parkway. Representative Clayton Little has written that the Budget Review Subcommittee, on Transportation of the Interim Joint Committee on Appropriations and Revenue, has recommended a continuance of the tolls at the present level on the Mountain Parkway and the Mountain Parkway Extension, after debt service payments on the bonds issued to build those roads have been paid (including all interest due). Representative Little has written us that the debt service retiring the bonds and interest should be completely paid in January, 1985 for the Mountain Parkway and paid in July, 1985 for the Mountain Parkway Extension.
Your question is whether the tolls on those roads may be retained after the bonds and interest are completely paid.
KRS 175.610 reads:
"Except as hereinafter provided in this section, when all bonds issued under the provisions of this chapter in connection with any turnpike project or projects and the interest thereon shall have been paid or a sufficient amount for the payment of all such bonds and the interest thereon to the maturity thereof shall have been set aside in trust for the benefit of the bondholders, such project or projects, if then in good condition and repair, shall be conveyed by the authority to the Commonwealth and shall become part of the state highway system and shall thereafter be maintained by the bureau free of tolls; provided, however, that the bureau may, in any proceedings or trust indenture authorizing or securing bonds under the provisions of this chapter, provide for combining for financing purposes any two (2) or more turnpike projects theretofore constructed or thereafter to be constructed, and for the reimposition or continuance of tolls on each such turnpike project until all such bonds and the interest thereon shall have been paid or a sufficient amount for such purposes shall have been set aside in trust for the benefit of the bondholders. "
Under KRS 175.610, when the bonds and interest have been paid off in full by either of the options mentioned, as relates to those parkways, the Transportation Cabinet has the responsibility of making an engineering determination as to the precise condition and state of repair of those roads at the exact time the bonds are fully paid. If the engineering study and survey of the condition and repair of the roads clearly indicate that the roads, or either of them, are not in good condition and repair, the Secretary of the Transportation Cabinet has the authority to direct that the tolls on either road found to not be in good condition and repair be continued for a reasonable time, during which period of toll retention the roads are restored to a good condition and repair.
The trust indentures of the Mountain Parkway (dated July 1, 1960) and the Mountain Parkway Extension (dated January 1, 1962) specifically adopted the language of KRS 175.610, as cited above, relating to the conveyance of the Toll Road by the Turnpike Authority to the Commonwealth when all of the bonds with interest are fully paid, provided that the Toll Roads are "then in good condition and repair, as determined by the Department" (now Transportation Cabinet) (Emphasis added). Once the Toll Roads are conveyed by the Authority to the Commonwealth, they shall become a part of the state highway system and shall thereafter be maintained by the Department free of tolls.
CONCLUSIONS
(1) Under the literal wording of KRS 175.610, when the bonds and interest are completely paid, as relates to the Mountain Parkway and Mountain Parkway Extension, if those roads are found by the Transportation Cabinet to be in good condition and repair, the Turnpike Authority must then convey the Toll Roads to the Commonwealth, and they shall become part of the state highway system and shall thereafter be maintained by the Transportation Cabinet free of tolls. However, if, at the time the bonds and interest are fully paid, the Transportation Cabinet finds that the Toll Roads are not in good condition and repair, the tolls should be retained for a reasonable period, during which time the Cabinet will restore the Toll Roads to good condition and repair.
(2) The statutes do not define the phrase "good condition and repair. " Primarily, the engineers of the Transportation Cabinet would have to make that determination, based upon their on-the-ground observation and recorded data therefrom. In Thompson v. Allegheny Valley St. Ry. Co., Pa., 194 A. 921 (1937), the Supreme Court of Pennsylvania observed that keeping certain railroad facilities in good condition and repair must be viewed in the light of the use to be made of the facilities and in keeping the facilities in a reasonably safe condition for use by pedestrians exercising due care. As we said, whether the deterioration of those Toll Roads have caused them to not be in "good condition and repair" is primarily a professional highway engineer determination.
(3) Concerning the phrase "reasonable time" , within which to repair the Toll Roads if deemed to not be in good condition and repair, the Federal District Court of Connecticut, in In re Sternberg, 300 F. 881 (1924) 884, wrote that the words "reasonable time" , appearing in a Connecticut statute, have no set limits and no precise definition, it being well settled that what is a reasonable time depends entirely upon the facts and circumstances of each particular case. The law question for the court of reasonable time, in the absence of controversy respecting the facts, has been defined as so much time as is necessary, under the circumstances, to do conveniently what the duty requires, in the particular case. Bowen v. Detroit City Street Ry. Co., 20 N.W. 559 (1884) 562. The Court of Civil Appeals of Texas, Houston, in Cleghorn v. Dallas Power & Light Co., Tex. Civ. App., 611 S.W.2d 893 (1981) 897, wrote that "What constitutes a 'reasonable time' is not defined by the law, but rather is a question to be decided by the judge according to the facts and circumstances of the case or as ascertained by the findings of the jury."
(4) The ultimate decision as to the responsibility for retaining the tolls under KRS 175.610 rests with Governor Collins and her Transportation Cabinet. The Turnpike Authority is an agency of the Commonwealth. See H.E. Cummins & Sons Const. v. Turnpike Auth., Ky.App., 562 S.W.2d 651 (1978); KRS 175.430, 175.440, and 175.450. It has only the authority given by statute. Here the Turnpike Authority has no authority to determine whether or not the Toll Roads are in "good condition and repair. " Under KRS 175.610, when the bonds are fully paid, and if the tolls are continued for a reasonable period, during which time the Cabinet will restore the Toll Roads to good condition and repair, then, at that point of restoration of good condition and repair, the Turnpike Authority would be required to convey the Toll Roads to the Commonwealth, and they would become part of the state highway system and would be maintained by the Transportation Cabinet free of tolls. The examination of KRS Chapter 175, the statutory sections mentioned above and the Toll Roads documents, as concerns the Turnpike Authority, disclose no authority, once the bonds and interest are fully paid, for the Turnpike Authority's determining whether the roads are in good condition and repair. The Turnpike Authority does have the responsibility to convey the roads to the Commonwealth, when the roads are restored to good condition and repair. Once the bonds are fully paid, the role of the Turnpike Authority in constructing, acquiring, financing and operating the Toll Roads comes to an end, with the exception of the technical control of the tolls and the final transfer of the roads to the Commonwealth, under the fact situation outlined above. KRS 175.425. Even prior to the final payment of the bonds, the Authority is required to exercise its functions just described by agreement with the bureau (now Transportation Cabinet). See KRS 175.440 and 175.450. While the roads are being restored to good condition and repair by the Cabinet, the Authority has control of the tolls, since the bonds will have been paid in full and the lease, with its debt service implications and the Cabinet's control of the tolls, will be at an end. KRS 175.450(4) explicitly provides that the Turnpike Authority is empowered to fix and revise from time to time and charge and collect tolls for transit over each turnpike project constructed by it, except to the extent that such powers are surrendered to the bureau (Transportation Cabinet) pursuant to a lease. The subject Toll Roads bond documents vested the control of tolls in the Department (Highways) during the life of the lease. See KRS 175.460, KRS 175.470 and KRS 175.520. The wording of KRS 175.610 suggests that the tolls remain at the level in existence at the precise time the bonds are fully paid, in connection with the restoration of the good condition and repair. In this special situation, the Authority's control over tolls is rather academic, since the tolls should be retained at the level existing when the bonds are fully paid, and since the actual administration of the tolls is a responsibility of the Transportation Cabinet. In support of the view that the Transportation Cabinet has the responsibility to determine whether the Toll Roads are in good condition and repair when the bonds are fully paid, see KRS 176.050, requiring the Department of Highways to investigate all problems relating to the construction and maintenance of state roads, and KRS 176.420, requiring the Department of Highways to conduct a continuing study of the needs of the highways under its jurisdiction for the purpose of bringing existing facilities to acceptable standards or for the replacement of existing facilities where required.
Finally, the Kentucky Turnpike Authority, as an alterego of the Commonwealth, has no meaningful existence apart from the Transportation Cabinet. Edgar H. Hughes Co. Inc. v. Turnpike Authority of Kentucky (U.S. Dist. Court, E.D. Ky. - 1973) 353 F.Supp. 1105, 1106.