Alabama Attorney General Opinion 1979-0157

44 Or 0.5% CHARLES A. GRADDICK ATTORNEY GENERAL STATE OF ALABAMA APR 2s 1979 OFFICE LEE L. HALE DEPUTY ATTORNEY GENERAL WILLIAM M. BENURS. JR . EXECUTIVE ASSISTANT WALTER S. TURNER CHIEF ASSI5TAN I ATTORNEY GENERAL JANIE NOSLES ADMINISTRATIVE ASSISTANT THE ATTORNEY GENERAL Doisr7 ADMINISTRATIVE BUILDING 44 NORTH UNION STREET MONTGOMERY. Sella AREA 120111. 134-111 SO Perry County Commission Perry County Courthouse Marion, Alabama 36756 ATTENTION: Mr. Kirtley W. Brown County Attorney Counties-Perry County-Private Roads-Local Laws County work on private roads discussed. Opinion by Assistant Attorney General Stephens Dear Commissioners: We have received and considered at great length your request for an Attorney General's opinion as to whether the Perry County Commission may construct and maintain roads and right-of-ways leading to private dwellings pursuant to Act No. 325 of the 1976 Regular Session of the Alabama Legislature and whether roads generally and..of necessity traversed for mail routes and passage of public school buses ought to be considered as public roads rather than private roads. Your questions obviously arose as a result of the opinion which this office issued under date of January 19, 1979 to the Honorable Tom Young, District Attorney of Randolph County, which opinion stated that the County Commission of Randolph County was not authorized to perform work on private roads. That opinion was based upon several considerations, a discussion of which might be helpful here. ,—.-7ANISSISIGEIGLASSIGIZIEMINowasantinnyAnNNANANAR-------. Perry County Commission Page Two First, it is axiomatic in judicial considerations that a county and municipality can exercise only those powers granted by the Constitution or statutes. Secondly, Amendment #112 to the Constitution of Alabama 1901, amended Section 94 of said Constitution which was identified as Sec. 55 of Constitution of Alabama 1875 and carried forward almost the identical language used as follows: "The legislature shall not have power to authorize any county, city, town, or other subdivision of this state to lend its credit, or to grant public money or thing of value in aid of, or to any in- dividual, association, or corporation whatsoever, or to become a stockholder in any such corporation, association, or company, by issuing bonds or otherwise. It is provided, however, that the legis- lature may enact general, special, or local laws authorizing political sub- divisions and public bodies to alienate, with or without a valuable consideration, public parks and playgrounds, or other public recreational facilities and public housing projects, conditional upon the approval of a majority of the duly qualified electors of the county, city, town, or other subdivision affected thereby, voting at an election held for such purpose." The framers of our Constitution inserted this protective measure to prevent waste of public funds and temptation for political purpose and favoritism. Also, Amendment #93 to the Constitution of 1901, as amended by Amendment No. 354, provides in pertinent part as follows: "No moneys derived from any fees, excises, or license taxes, levied by the state, relating to registration, operation, or use of vehicles upon the public highways except a vehicle-use srr Perry County Commission Page Three tax imposed in lieu of a sales tax, and no moneys derived from any fee, excises, or license taxes, levied by the state, relating to fuels used for propelling such vehicles except pump taxes, shall be expended for other than cost of administering such laws, statutory refunds and adjust- ments allowed therein, cost of con- struction, reconstruction, maintenance and repair of public highways and bridges, costs of highway rights-of- way, payment of highway obligations, the cost of traffic regulation, and the expense of enforcing state traffic and motor vehicle laws. The provisions of this amendment shall not apply to any such fees, excises, or license taxes now levied by the state for school purposes for this whole state or for any county or city board of education therein;..." Code of Alabama 1975, §23-1-80 originated from Act #347, Acts of Alabama 1927, page 348 (The Alabama. Highway Code) and provides as follows: "The county commissions of the several counties of this state have general superintendence of the public roads, bridges and ferries'within their respective counties so as to, render travel over the same as safe and convenient as practicable. To this end, they have legislative and executive powers, except as limited in this chapter. They may establish, promulgate, and enforce rules and regulations, make and enter into such contracts as may be necessary or as may be deemed necessary or advisable by such commissions to build, construct, make, improve and maintain a good system of public roads, bridges and Perry County Commission Page Four ferries in their respective counties, and regulate the use thereof; but no contract for the construction or repair of any public roads, bridge or bridges shall be made where the payment of the contract price for such work shall ex- tend over a period of more than 20 years." It is noted that the original act deals with public roads and that the 1975 Code specifies public roads, bridges and ferries. The only reasonable and logical interpretation leads to but one conclusion: viz., so-called state "gas tax" funds may be expended by counties for "public road" purposes only. Still further, Section 36-10-14 provides, in pertinent part, that "(a) No public officer shall: ...(3) Employ or use any person, money or property under his official control or direction or in his official custody for the private benefit or gain of him- self or another." Considering all of the above constitutional and statutory provisions and principles of law this office con- cluded that it was illegal for county commissions to do work on private roads. Unlike the question presented by Mr. Young, your question concerns the constitutionality of a local ac: which is applicable to Perry County and which provides that the county commission may perform work on private roads and drives. Some of the same principles and provisions of law which are discussed above as the basis for the opinion to Mr. Young may, however, also be applicable to a consideration of the question you have posed. Still another factor to be considered is the applicability of §105 of the State Consti- tution which prohibits the legislature from enacting a local law in any case which is provided for by a general law. There are several other counties, in addition to Perry County, which have local laws purporting to authorize the Perry County Commission Page Five county commissions to work on private roads and this office has received inquiries about them also. However, an Attorney General's opinion, being advisory in nature, would not resolve the questions raised by these local laws and the courts will probably have to eventually decide this_iesue. Therefore, this office will not express an opinion on 'the constitutionality of those laws but offers the above dis- cussion for consideration by appropriate officials. Sincerely, eLJuaz. stasta CHARLES A. GRADDICK Attorney General CAG:bs