Alabama Attorney General Opinion 1979-0017

# OFFICE OF THE ATTORNEY GENERAL [LOGO] 79-00017 File #15 CHARLES A. GRADDICK ATTORNEY GENERAL STATE OF ALABAMA ADMINISTRATIVE BUILDING 64 NORTH UNION STREET MONTGOMERY, ALABAMA 36130 AREA (205), 634-8100 LEE L. HALE DEPUTY ATTORNEY GENERAL WILLIAM M. BEKURS, JR. EXECUTIVE ASSISTANT WALTER S. TURNER CHIEF ASSISTANT ATTORNEY GENERAL JANIE NOBLES ADMINISTRATIVE ASSISTANT April 26, 1979 Honorable Bruce Gargis Chairman Colbert County Commission Tuscumbia, Alabama 35674 Dear Mr. Gargis: By letter of March 9, 1979 you asked this office whether Act No. 419 of the 1978 Session of the Alabama Legislature authorizes the State Highway Department to use county road funds to maintain mail routes, school bus routes and church and public cemetery roads in Colbert County when such roads are on private property. Implicit in your request is the question of whether your local law permitting work on private property is constitutional. In an opinion to the Honorable Tom Young, District Attorney of Randolph County, dated January 19, 1979 this office expressed the opinion that, in the absence of a local law, the county was not authorized to perform work on private roads. In a more recent opinion to the Perry County Commission we have discussed the constitutionality of local laws which purport to permit the county to perform work on private roads. Copies of those opinions are enclosed for your information. In particular, the discussion of the Perry County law is applicable to your law and it does not seem necessary that this office issue a further opinion specifically addressing your law. One distinction to be considered between your law and the Perry County law is that your law merely authorizes the State Highway Department to perform certain work. It does not require the Highway Department to perform that work. Since we do not have any indication at this time that the Highway Department wishes to perform the work Honorable Bruce Gargis April 26, 1979 Page Two authorized in that law, your question is purely hypothetical and any opinion that we might issue would be unnecessary. I hope that this letter and the enclosed opinions will provide sufficient guidance for you. Sincerely, CHARLES A. GRADDICK Attorney General By- William T. Stephens WILLIAM T. STEPHENS Assistant Attorney General WTS:bb Enclosures # THE ATTORNEY GENERAL STATE OF ALABAMA · MONTGOMERY, ALABAMA 36130 [LOGO] CHARLES A. GRADDICK ATTORNEY GENERAL March 9, 1979 Mr. Bruce Gargis Chairman Colbert County Commission Tuscumbia, Alabama 35674 The Highway Department may not maintain private roads in "captive counties." Dear Mr. Gargis: Your letter of August 16, 1978, requests an opinion as to the interpretation of Act 419, Volume I, Acts of Alabama 1978, page 430, which states as follows: BE IT ENACTED BY THE LEGISLATURE OF ALABAMA: Section 1. The State Highway Department is hereby authorized to use road funds dedicated and allo- cated to the maintenance and improvement of roads in Colbert County for maintenance of mail routes, school bus routes, and roads leading from a public road to a church or a public cemetery in such county. Section 2. All laws or parts of laws which con- flict with this Act are hereby repealed. Section 3. This Act shall become effective im- mediately upon its passage and approval by the Governor, or upon its otherwise becoming a law. Your specific inquiry is as follows: Can the State Highway Department use county road funds to maintain said mail routes, school bus routes, etc., if the road running to the church, cemetery, or the particular mail route or school bus route is on private property? Mr. Bruce Gargis Page 2 March 9, 1979 Your question must be answered in the negative. Act No. 645, Volume II, Acts of Alabama 1965, page 1164, made Colbert County one of the "captive counties" in the state of Alabama. The effect of the 1965 Act is that all funds, including the proportionate share of the state gasoline tax (Act No. 224, Volume I, Acts of Alabama 1967, page 295) and the motor vehicle license tax (Act No. 223, Volume I, Acts of Alabama 1967, page 282) are turned over to the State Highway Department for maintenance and repair of county roads and bridges of Colbert County. This makes it incumbent upon the authority charged with the responsibility of maintaining the roads, in this case the Highway Director, to determine for the purpose of maintenance which roads are public as opposed to private. The above Acts No. 223 and 224 define public highways as follows: "Public Highway" means every highway, road, street, alley, lane, court, place, trail, drive, bridge, viaduct or trestle, located either within a municipality or in unincorporated territory, and laid out or erected as such by the public or dedicated or abandoned to the public or intended for use by or for the public. The term "public highway" shall apply to and include driveways upon the grounds of universities, colleges, schools and institutions, but shall not be deemed to include private driveways, private roads, or private places not intended for use by the public. The expenditure of tax funds and fees generated from motor vehicle use is governed by the Constitution of Alabama 1901, Amendment 93 as amended by Amendment 354, which states in part: No monies derived from any fees, excises, or license taxes levied by the State, relating to registration, operation, or use of vehicles upon public highways, . . . and no monies derived from any fee, excise, or license taxes, levied by the State, relating to fuels used for propelling such vehicles . . . , shall be expended for other than costs of administering such laws, statutory refunds and adjustments allowed therein, cost of construction, reconstruction, maintenance and repair of public highways and bridges, costs of highway right-of-ways, payment of highway obligations, the costs of traffic regulation, and the expense of enforcing state traffic and motor vehicle laws. Mr. Bruce Gargis Page 3 March 9, 1979 In view of the foregoing; Act No. 419 of the 1978 Legislature is in conflict with Amendments 93 and 354 of the Constitution of Alabama which prohibits the expenditure of funds for other than construction or maintenance of public roads and enforcement of traffic laws. Sincerely, CHARLES A. GRADDICK Attorney General By Jack F. Norton Jack F. Norton Assistant Attorney General JFN:nma