Request By:
Mr. Stephen Reeder
Deputy Secretary for Legal Affairs
Transportation Cabinet
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In an opinion prepared by a member of your staff, it was concluded that equipment used in planning, mapping, preparing roadway plans, acquisition of rights-of-way, etc., is equipment used in the "construction and maintenance of roads" and its purchase is excluded from the provisions of KRS 45.750 to 45.800.
The sections KRS 45.750 to 45.800 concern capital construction and equipment financing. The subject opinion proposition was rejected by the Capital Construction and Equipment Purchase Oversight Committee.
KRS 45.750(2) provides:
"KRS 45.750 to 45.800 shall apply to capital construction projects and the purchase of major items of equipment for use by the state government or one of its departments or agencies, including institutions of higher education, but excluding capital construction projects or equipment purchases used in the construction or maintenance of roads. KRS 45.750 to 45.800 shall not apply to political subdivisions." (Emphasis added).
A "capital construction project" is defined as any capital construction item, or any combination of capital construction items necessary to make a building or utility installation complete, estimated to cost two hundred thousand dollars ($200,000) or more, and "major item of movable equipment", estimated to cost fifty thousand dollars ($50,000) or more. KRS 45.750(1)(c).
In connection with the use of certain tax receipts for urban roads and streets, KRS 177.365(2) reads:
As used in this section unless the context requires otherwise "construction," "reconstruction, " and "maintenance" mean the supervising, inspecting, actual building, and all expenses incidental to the construction, reconstruction, or maintenance of a road or street, including planning, locating, surveying, and mapping or preparing roadway plans, acquisition of rights-of-way, relocation of utilities, lighting and the elimination of other hazards such as roadway grade crossings, and all other items defined in the department of highways' design, operations, and construction manuals.
The above definition is a practical expose of roadrelated purposes, and is carefully tailored to pass the constitutional muster in connection with certain state revenues derived from excise or license taxation relating to gasoline or other motor fuels. Such revenues must be spent for road and bridge construction pursuant to § 230, Kentucky Constitution.
The Court, in Keck v. Manning, 313 Ky. 433, 231 S.W.2d 604 (1950) 606, wrote this about § 230, Constitution:
"The purpose of the 1944 amendment, often referred to as the 'anti diversion amendment', was not to curtail the road program but to make secure the funds with which to continue it. Through excise taxes on gasoline and license taxes on motor vehicles tremendous sums are brought into the state treasury. In some states part of this money has been used for education, welfare or social security programs and other government expenses. The amendment was supported by the motor vehicle interests to prevent this fund, raised by special taxes levied against them, from being put to uses having no connection with the construction, maintenance and administration of the highway system."
The broadness of the term "construction and maintenance of highways" is sharply pointed up in
Grauman v. Department of Highways, 286 Ky. 850, 151 S.W.2d 1061 (1941) 1062:
"It can hardly be doubted that the term 'construction and maintenance' of the highway has a broader meaning than that of construction and maintenance of the actual road bed. We think the term is broad enough to include everything appropriately connected with and incidental to the construction and maintenance of an efficient road system, including the ordinary and usual devices used on roads to promote the safety and convenience of traffic. "
The Old Court of Appeals, in Rice v. Marcum, 294 Ky. 486, 172 S.W.2d 75 (1943) 77, ranterated the doctrine that "We think the term (construction of roads and bridges) is broad enough to include everything appropriatelyconnected with and connected with and incidental to the construction and maintenance of an efficient road system."
We do not find it necessary to pursue further appellate treatment of the subject, except to note that in
Keck v. Manning, 313 Ky. 433, 231 S.W.2d 604 (1950), the Court pointed out that § 230, Constitution, made no attempt to specify for just what the road fund may be expended. "On the contrary, they used the broadest terms, such as the 'cost of administration . . . . construction, reconstruction, rights-of-way, maintenance . . . . expense of enforcing state traffic and motor vehicle laws. '" (Emphasis added). Thus the judicial interpretations of the concept of "construction and maintenance of roads" in terms of § 230 is highly important in this total context. It gives us a concrete idea of the practical broadness of the state road program.
CONCLUSION
Under the foregoing analysis and authorities, it is our opinion that the opinion prepared for your cabinet is correct. Thus, under KRS 45.750(2), the equipment used in state road planning, mapping, preparing roadway plans, acquisition of rights-of-way, etc., is equipment used in connection with the construction and maintenance of roads; and the purchase of such equipment is explicitly exempt from the statutes (KRS 45.750 to 45.800) governing "capital construction and equipment financing. "