Request By:
Mr. Robert M. Kirtley
Assistant County Attorney
Courthouse
Owensboro, Kentucky 42301
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You enclosed with your letter a copy of a proposed Daviess County ordinance providing for custom grading work on private property. You ask us to advise you as to its legality.
The preamble recites that for many years the county has performed custom grading work (use of county grading equipment and county road personnel performing grading work only) for land owners whose land abuts county roads, but which land is not on county road right-of-way [a maximum of 3 man hours on each project]. Such policy has resulted in the county's acquiring easements and rights-of-way for county road improvements voluntarily, as opposed to legal process. Also it is declared that the abutting land owners have helped the county road department in bad weather to keep the county roads open for public use. Thus custom grading work is deemed to be an integral part of the county road system.
The proposed ordinance provides for custom grading work on private property under certain guidelines. The ordinance provides that the district grader foreman may allow custom grading work if the county engineer recommends and the county commissioner of the affected district approves. However, the work must be paid for by the private land owner at a prescribed rate within 5 days after completion of the work.
We are of the opinion that the proposed ordinance is unconstitutional, since it involves county money, received from taxpayers, being spent to improve private properties. See §§ 3 and 171, Kentucky Constitution. The case of Scott v. Massachusetts Bonding & Insurance Company, Ky., 273 S.W.2d 350 (1954) 352, is controlling, beyond any reasonable doubt. The court there sounds the death knell to this kind of innovative leap into private purpose when it wrote that "a county is unauthorized to improve the private property of its citizens." Here the reliance upon a private program or excursion, which may or may not result in certain county benefits, as a public purpose is too remote and conjectural to meet the constitutional test of public purpose. See Industrial Develop. Auth. v. Eastern Ky. Reg. P1. Com'n, Ky., 332 S.W.2d 274 (1960). There is nothing definite about this program. And the fact that the county's work would be paid for by the private individuals is wholly irrelevant in terms of the constitutional mandate (county money expended for a public purpose only). Further, KRS Chapters 178 and 179 envision that county road equipment and personnel will be employed only on "county roads", as defined in KRS 178.010, not on private lands that are not being condemned or otherwise acquired for the county road system. KRS 179.110 specifically and explicitly provides that the fiscal court shall employ necessary employes and agents for the construction and maintenance of "county roads and bridges." "County roads", as defined in KRS 178.010, are public roads which have been accepted by the fiscal court of the county as a part of the county road system.
Thus you are confronted by the principle that public money cannot be spent to improve private properties. Lincoln, in his last public address in Washington, said that "Important principles may and must be flexible." But here there is no flexibility, under the facts given, which will convert an unconstitutional use of county employes and equipment to a constitutional use.
The situation presented by the ordinance can be easily distinguished from the situation in the recent Hager opinion (OAG 77-465). In that opinion the resurfacing of one-half mile of road by Daviess County involved an admixture of private and public purpose. This office is often not able to render a categorical opinion where the complete and critical factual elements are not presented or cannot be reasonably ascertained. In such cases, as was true in OAG 77-465, we decline to give a definite, categorical opinion, and suggest that it is a proper issue for the courts. But in the present situation, we know all the critical facts. They are carefully detailed in the proposed ordinance. Thus in discharging our duty under KRS 15.020, it is our opinion that the proposed oridnance is unconstitutional on the ground that it would involve the use of public money for private purposes.