Request By:
Honorable William Donnermeyer
House of Representatives
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
On behalf of the Northern Kentucky delegation in the General Assembly you have requested an Opinion of the Attorney General as to whether municipal aid road money provided under KRS 177.365-177.368 may be used in support of public transportation operations. By public transportation operations we assume you mean the Transit Authority of Northern Kentucky which was established by joint action of Kenton, Campbell and Boone Counties pursuant to KRS Chapter 96A.
Mass transportation has been declared a public purpose by the highest
Court of Kentucky in Youtsey v. County Debt Commission, Ky., 401 S.W. 2d226 (1973). In that case the Court said at page 268:
It occurs to us that the providing of low-cost mass transportation services fulfills a public purpose not only in promoting the economy in areas of employment and commerce through facility of travel, but also in reducing traffic congestion, air pollution, and the excessive devoting of land to automobile-related uses, caused by the proliferating use of individual automobiles. The construction and maintenance of streets, which are simply a form of transportation facility, have always been considered to serve a public purpose. If providing the streets on which vehicles travel is a public purpose, then why not the providing of vehicular passage over those streets?
Despite the declared public purpose of mass public transportation we think there is a constitutional barrier against using road fund money for a transit authority. Kentucky Constitution § 230 reads as follows:
Money not to be drawn from Treasury unless appropriated; annual publication of accounts; certain revenues usuable only for highway purposes.
No money shall be drawn from the state treasury, except in pursuance of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published annually.
No money derived from excise or license taxation relating to gasoline and other motor fuels, and no monies derived from fees, excise or license taxation relating to registration, operation, or use of vehicles on public highways shall be expended for other than the cost of administration, statutory refunds and adjustments, payment of highway obligations, costs for construction, reconstruction, rights-of-way, maintenance and repair of public highways and bridges, and expense of enforcing state traffic and motor vehicle laws.
The second paragraph of Section 230 has been referred to as the anti-diversionary clause and was enacted as a constitutional amendment in 1946. It has been construed by the courts several times.
Ward v. Louisville and Nashville Railroad Company, Ky., 402 S.W.2d 98 (1966);
Keck v. Manning, 313 Ky. 433, 231 S.W.2d 604 (1955). Although the Court has held that the road fund money could be used for installing and maintaining railroad crossing signals and the printing of road maps and other literature pertaining to highways, we do not believe that the courts would go so far as to include mass transportation as a proper use of such funds. In OAG 60-44 (copy enclosed) this Office opined that RS Funds could not be used to improve or resurface a parking area on a school ground.
KRS 96A.120 provides several ways by which a transit authority may acquire necessary funds. One of the ways is for the public bodies, which created the authority, to appropriate money for the use of the authority. But since Section 230 so clearly restricts the use of money derived from taxes on gasoline for highway purposes it is our opinion that any legislation directing the money to be used otherwise would be unconstitutional. We do not believe that broadening a definition of the word "maintenance" as used in KRS 177.365 to include any activity or project that would decrease cost and expenditures of repair on urban streets and highways would surmount the constitutional barrier.