Could Kentucky county road aid pay for road-adoption notices or deeds, and could a county attorney charge for a road deed?
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This page answers the general question as of 1993. Ask about yours and see what current Kentucky law means for your facts, with citations you can check.
Plain-English summary
In 1993, Kentucky's Attorney General said county road aid funds could not be used for the cost of advertising an ordinance that adopted a road as a county road or for preparing a deed to convey a road right-of-way. The statute set aside those funds for road and bridge construction, reconstruction and maintenance. The AG viewed advertising and deed preparation as right-of-way acquisition costs, outside those listed purposes.
The AG also addressed a county attorney's fee for preparing a deed. If the attorney prepared it for the fiscal court at its direction, the work would probably be part of regular official duties, with no separate charge to the court. If a private party requested the deed, the AG said the county attorney should not prepare it in an official capacity or charge the private party for official work.
Currency note
This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Historical summary
County fiscal courts and road officials
The AG treated publication of a road-adoption ordinance and drafting of a right-of-way deed as acquisition-related expenses. Because KRS 177.320(2) named construction, reconstruction and maintenance as the uses of county road aid, the opinion said the two expenses could not be paid from that restricted fund.
County attorneys
The opinion distinguished deed work directed by the fiscal court from work requested by a private party. For fiscal-court work, it said a separate fee probably would not apply because the task fell within ordinary county-attorney duties. Acting as county attorney for a private party, and charging that person for official work, was inappropriate.
Owners donating road rights-of-way
The question arose from rights-of-way being donated to the county. The opinion resolved which public fund could pay the associated notice and deed expenses and addressed the attorney's official role; it did not decide the terms of any individual donation.
Common questions
Could county road aid pay to advertise a road-adoption ordinance?
The AG said no. It classified that notice as related to acquiring a road right-of-way, outside the construction, reconstruction and maintenance purposes listed in KRS 177.320(2).
Could the same fund pay to prepare a donated road right-of-way deed?
No. The opinion applied the same statutory restriction to deed preparation costs.
Could the county attorney bill the fiscal court separately for a road deed?
The AG said that if the fiscal court directed the attorney to prepare it as its counsel, the work would probably be a regular duty under KRS 69.210 and a separate charge would not apply.
Could the county attorney prepare the deed for a private landowner in an official capacity?
The opinion said that was inappropriate. It also said an official fee could not be imposed on the private party for that work.
Background and statutory framework
The Clinton County Attorney asked three related questions about donated county-road rights-of-way. The AG read the earmark in KRS 177.320(2) as limiting road aid spending to its enumerated purposes. It cited Smith v. Wedding for the principle that listing particular purposes excludes others. It then considered KRS 69.210 and the different roles a county attorney might have in drafting a deed.
Citations and references
- KRS 177.320(2): restricted purposes of county road aid.
- KRS 178.050: adoption of a road as a county road.
- KRS 69.210: county attorney's duties for the fiscal court.
- Smith v. Wedding, Ky., 303 S.W.2d 322, 323 (1957): construction of an enumerated statutory list.
Source
Original opinion text
OAG 93-64
September 28, 1993
Hon. James M. Lawson
Clinton County Attorney
Lawson Building
215 E. Cumberland Street
Albany, Kentucky 42602
Re: Whether County Road Aid Monies May be Used to Pay Advertising Costs and County Attorneys Charges for Preparation of Deeds in Connection with Road Right-of-Ways Being Donated to County; Whether County Attorney May Charge for Preparing Deed Conveying Road to County.
Dear Mr. Lawson:
By letter of August 26, 1993, you asked, in substance, that this office indicate (1) whether costs for advertising, associated with ordinances for adoption of roads as county roads, could be paid from county road aid funds, (2) whether the county attorney can charge for preparation of a county road deed, and, (3) whether such charge could be paid from county road aid monies.
In our view, the answer to the three questions set forth above is no. Discussion follows.
"County road aid monies" (as we understand such phrase to be used in your letter) are those funds allocated to the counties in accordance with KRS 177.320(2), which provides as follows:
On or after July 1, 1980, eighteen and three-tenths percent (18.3%) of all funds arising from the imposition of taxes provided by KRS 138.220, 138.660(1) and (2), and 234.320 shall be set aside for the construction, reconstruction and maintenance of county roads and bridges provided by KRS 179.410 and 179.415.
(Emphasis added.)
It is our understanding that the recognized practice in governmental allocation of costs related to road projects is to treat right-of-way acquisition costs as separate from "construction costs." We believe that costs associated with advertising of ordinances to adopt a given roadway as a county road are more related to right-of-way acquisition than they are to "construction, reconstruction and maintenance." We hold the same view with respect to deed preparation costs. Stated another way, in our view, the cost of advertising an ordinance for adoption of a road as a county road (KRS 178.050), and the cost of preparing a deed in connection with conveying a right-of-way to the county, cannot be properly viewed as costs for "construction, reconstruction and maintenance" as that phrase is used in KRS 177.320(2) (above).
Additionally, KRS 177.320(2), in expressly providing that certain revenues shall be set aside for the "construction, reconstruction and maintenance of county roads and bridges," must be taken as limiting the expenditure of such funds to the specific uses authorized. Right-of-way acquisition related costs (e.g., deed preparation and ordinance advertising costs) are not "construction, reconstruction and maintenance costs" within the common and everyday meaning of those terms, and thus cannot be paid from funds restricted to "construction, reconstruction and maintenance."
In Smith v. Wedding, Ky., 303 S.W.2d 322, 323 (1957) the Court indicated: "It is a primary rule of statutory construction that the enumeration of particular things excludes the idea of something else not mentioned."
With regard to what are known as "County Road Aid Funds," the legislature has enumerated, by listing, specific purposes for which County Road Aid Funds may be used. This listing does not include what we believe are right-of-way acquisition related costs, rather than costs for "construction, reconstruction or maintenance." It follows that costs for advertising of ordinances and deed preparation cannot be lawfully paid from "County Road Aid Funds" (KRS 177.320(2)).
With regard to whether it would be "appropriate for the county attorney to charge for preparation of a county road deed," it is not clear for whom the deed preparation work is being performed, or who would be asked to pay such charge.
If the deed is prepared by the county attorney, as counsel for the fiscal court, and at its direction, such activity would probably be viewed as a part of the regular duties of the county attorney for the fiscal court (KRS 69.210), for which a separate charge against the fiscal court would not apply. Money v. Beard & Marshall, 136 Ky. 219,124 S.W. 282 (1909), Clay County v. Sizemore, 269 Ky. 722, 108 S.W.2d 733 (1937). If, on the other hand, a deed is prepared at the behest of a private party, it would be inappropriate for the county attorney, acting as county attorney, to prepare such deed on behalf of a private party. Accordingly, it would be inappropriate for the county attorney, if acting in his official capacity, to impose a fee on a private party for official work.
Sincerely,
CHRIS GORMAN
ATTORNEY GENERAL
Gerard R. Gerhard
Assistant Attorney General
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