Montana Attorney General Opinion 16-153

Opinion No. 153. Highways-Public Highways-Per- manent Highways-County Surveyor -Cities and Towns-Streets and Alleys, Improvement of-General Road Fund-Counties. HELD: 1. Where a city or town council lays out or constructs an alley within the limits of the city or town it represents, such alley is a public highway, and may be improved out of the general road fund of the county. 2. County surveyor is vested with authority to act in a supervisory ca- pacity after the city or town council has designated a public highway or street upon which work is to be done, and the type of pavement to be used July 5, 1935. Mr. Jack Healy County Surveyor, Silver Bow County Butte, Montana At your request I have examined the opinion of Clarence Hanley, depu- ty county attorney of Silver Bow County, concerning your powers as county surveyor in the construction and oiling of permanent highways and streets within the City of Butte. Prior to the passage of Chapter 107, Laws of 1923, not Chapter 103, Laws of 1933, fifty per cent of the net fees for registration of motor ve- hicles was paid to the particular county from which the registration fees came in the first instance and was credited to its general road fund. Under the provisions of Chapter 107 all of the net fees was paid to the particular county from which the reg- istration fees came in the first in- stance and was credited to its general road fund. The general road fund was used for the construction, mainte- nance, improvement and repair of highways in the county outside cities 152 OPINIONS OF THE ATTORNEY GENERAL and towns. Under the provisions of Chapter 88, Laws of 1927, which amended Chapter 107, all of the nel fees was paid to the county and was required to be used by it for the con- struction, repair and maintenance not only of highways outside cities and towns but of streets in Citil'S within the bOllf'.dllries of the county where such str.::ets formed component parts of arterial highways. Section 5039, Revised Codes of :::'921, provides among other things that "the city or town council has power to lay out, establish, open, alter, widen, ex- tend, grade, pave or otherwise im' prove streets, alleys, avenues, sicte- walks, parks, and public grounds and vacate the same." (Subdivision 6.) Section 1612, Revised Codes of 1921, defines public highway as follows: "All highways, roads, lanes, streets, alleys, courts, places, and bridges, laid out or erected by the public, or now traveled or used by the public, or if laid out or erected by others, dedicated or abandoned to the public, or made such by the partition of real property, are public highways." These two sections must be considered to- gether and in doing so the conclu- sion cannot be escaped that whf;re :1 city or town council lays out or con- structs an alley within the limits of the city or town it represents, such alley is a purlic highway. (State v. District Court, 80 Mont. 228; see, also, definition of term "alley" in "Words and Phrases.") It is apparent that the phrase "per- manent highways and streets" amI the phrase "public highways and streets," found in Section 1 of Chap- ter 103, Laws of 1933, are used in- terchangeably and mean the same thing. As under Section 1 aforesaid the city council has a voice only in the designation of the street or highway upon which the work is tn be done, and the type of pavement to be used, il would seem that when the designa- tion is made the county surveyor is vested with authority to proceed to the end in a supervisory capacity. I agree with all Mr. Hanley's con- clusions except the conclusion that the fund cannot be used for the con- struction of public alleys within a city having a population of 35,001) or more. I think the legislature intend- ed that "permanent highways and streets" should include "alleys," noth- ing to the contrary appearing in the statute. It may be informative to add that Section 1 of Chapter 103, has been amended in some respects by Section 1 of Chapter 38, Laws of Extraor- dinary Session 1933-34, but the con- clusions reached by Mr. Hanley are not affected by the change.