Request By:
Mr. Paul H. Salyer
Magoffin County Judge Executive
P.O. Box 430
Salyersville, Kentucky 41465
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Magoffin County Fiscal Court designated several county roads for repair under the Rural Secondary Road Fund under which the county was entitled to $77,000, according to your letter. Subsequently, you said, the state conferred with party patrons in the county and proceeded to change the list of county roads to be repaired and have now begun repairing county roads without ever seeking or receiving authorization from the Magoffin Fiscal Court.
You request our opinion as to the legality of the state's action, and whether the county has any recourse.
Twenty-two and two tenths percent (22.2%) of certain gasoline tax revenues is required by KRS 177.320 to be set aside for the construction, reconstruction and maintenance of secondary and rural roads and for no other purpose, and shall be expended by the Transportation Cabinet of the Commonwealth of Kentucky according to the terms and conditions prescribed in KRS 177.330 to 177.360.
Under KRS 177.330(1), at least once in each calendar year the Department of Rural and Municipal Aid is required to consult with the fiscal courts of various counties for the purpose of receiving recommendations from the fiscal courts for the selection of state maintained secondary and rural roads lying within said counties for construction, reconstruction or maintenance under the Rural and Secondary Road Program as set forth in KRS 177.320(1). The Department of Rural and Municipal Aid shall in addition give due consideration to the recommendations of the various fiscal courts with reference to the selection of county roads for construction, reconstruction or maintenance under the above described road program. The "Department of Highways shall, provided agreement is reached, proceed to construct, reconstruct or maintain such roads as are agreed upon in accordance with the provisions of KRS Chapters 177 and 179." (Emphasis added).
In essence, the fiscal courts are required to be consulted by the Transportation Cabinet, recommendations as to specific county road projects are to be obtained from the fiscal courts, and, where agreement between Transportation and the county is reached, the Department of Highways proceeds to work on the county road project agreed upon.
Pursuant to KRS 177.340, if, within thirty (30) days after receiving recommendations from any fiscal court, the Department of Rural and Municipal Aid and the fiscal court shall fail to agree on the county road project, the Department of Highways may proceed with the project, where the Department, in its discretion, believes the project is essential to a system of secondary highways. Such projects may become a part of the highway system of the Commonwealth, at the discretion of the State Department of Highways.
CONCLUSIONS
Under the explicit terms of the above statutes, the Department of Rural Aid's consulting with the particular fiscal court and the receiving of a recommendation from the fiscal court as to the proposed road project are mandatory. The Department is required to give fiscal court recommendation's due consideration. The legislature did not define "due consideration of the fiscal court's recommendations. " However, in examining KRS 177.330 and 177.340, and reading them together, we are of the opinion that the Department of Rural Aid is required to use its sound discretion in considering the county's recommendations within the Department's consideration of the development of a system of secondary highways, which may become a part of the State Highway System, at the discretion of the Department of Highways. Under the dearth of criteria as to the county and state implications of such road projects, we doubt that the courts would reverse the decision of Transportation in the absence of a complaining county's show of arbitrary conduct on the part of Transportation. See § 2, Kentucky Constitution. On the face of the facts made available to us, we doubt the existence of a practical remedy for the county in your situation. Once due consideration is given the county's recommendation, the Transportation Cabinet can either agree or not agree with the fiscal court's recommendations. If Transportation does not agree with the fiscal court's recommendations, within thirty (30) days after receiving such recommendations, the State Department of Highways may proceed to work on the county road project, which project, in its discretion, is deemed essential to a system of secondary highways.
In answer to your specific question, it is our opinion that the state's action was legal, since the fiscal court was given a chance to recommend as to the project, but the Department of Rural Aid could not agree with the fiscal court. We assume that KRS 177.340 (the 30 day period and no agreement) was observed and that the project decided upon by the Department or Rural Aid was deemed to be essential to a system of secondary highways. The Supreme Court of Kentucky wrote in Bailey v. Reeves, Ky., 662 S.W.2d 832 (1984), that the court was required to give the words of a statute written by the legislature their plain meaning.
It must also be kept in mind that such secondary roads are constructed, reconstructed or maintained with state money and considering that such roads are deemed to be essential to a system of secondary highways. Such roads may become a part of the state highway system. Under the facts submitted, we are of the opinion that the state acted pursuant to the applicable statutory law. See KRS 177.360, for allocation of funds for state maintained secondary and rural roads.