Could Maine constitutionally use Highway Fund revenue (collected from gas taxes and vehicle fees) to subsidize the Maine State Ferry Service that connects mainland communities with offshore islands?
Subject
Whether using Highway Fund revenue to support the Maine State Ferry Service was consistent with Article IX, § 19 of the Maine Constitution (the anti-diversion provision restricting Highway Fund use to public-highway purposes), updating the AG's 1996 opinion (Op. 96-11).
Currency note
This opinion was issued in 2012. 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.
Plain-English summary
Maine's Office of Program Evaluation and Government Accountability (OPEGA), on behalf of the Government Oversight Committee, asked Attorney General William Schneider to update the AG's 1996 opinion (Op. 96-11) on whether Highway Fund money could lawfully support the Maine State Ferry Service.
The Highway Fund is governed by Article IX, § 19 of the Maine Constitution, which dedicates revenues from "fees, excises and license taxes relating to registration, operation and use of vehicles on public highways, and to fuels used for propulsion of such vehicles" to highway and bridge purposes. The anti-diversion clause forbids using these revenues for non-highway purposes.
The Maine State Ferry Service runs ferries between mainland Maine and offshore islands (Vinalhaven, North Haven, Frenchboro, Swans Island, Islesboro, Matinicus). The ferries carry both vehicles and passengers. The constitutional question: are these ferries "public highways" within the meaning of § 19?
The 1996 AG opinion (Op. 96-11) concluded yes, the Highway Fund could be used to support ferries "whose principal purpose is the transportation of motor vehicles." The 2012 update reaffirmed that conclusion was "defensible," subject to ambiguities and uncertainties.
The legal basis comes from Portland Pipe Line Corp. v. Environmental Imp. Com'n, 307 A.2d 1 (Me. 1973), which traces Article IX, § 19's history. The provision was added in 1944, in response to federal concerns about diverting motor-vehicle taxes to non-highway purposes. The Law Court has read § 19 broadly enough to include ferries when they serve as functional extensions of the highway system.
The 2012 opinion's caveats: the AG identified ambiguities about specific ferry costs (passenger amenities vs. vehicle infrastructure, route subsidies for routes with low vehicle traffic, employee benefits unrelated to vehicle transportation). For each questioned expenditure, a fact-specific analysis would be needed. But the bedrock conclusion—that the Highway Fund can support ferry operations principally serving motor-vehicle transportation—remained intact.
Common questions
Q: What is the Maine Highway Fund?
A constitutionally dedicated state fund supported by gas taxes and vehicle fees. Article IX, § 19 of the Maine Constitution limits expenditures to public-highway purposes, with very narrow exceptions.
Q: Why ferries?
The Maine State Ferry Service is part of the Maine Department of Transportation. The ferries carry vehicles and passengers between mainland Maine and various offshore islands. For island residents, the ferry is the only practical way to bring vehicles to and from their property.
Q: What's the "principal purpose" test?
The 1996 AG opinion's articulation of the constitutional standard: a ferry route principally serving motor-vehicle transportation is sufficiently like a public highway to fall within § 19's permissible uses. A route principally serving passenger-only transportation might not.
Q: What about the LURC ferry that's mostly walk-on passengers?
The 2012 update flagged that as one of the ambiguities. The "principal purpose" test would have to be applied to each route based on its actual ridership profile.
Background and statutory framework
Maine Constitution, Article IX, § 19. Adopted 1944. Restricts Highway Fund revenues (motor-vehicle registration fees, fuel excises, license taxes) to: cost of administration, statutory refunds, debt service, highway and bridge construction/reconstruction/maintenance/repair, and traffic-law enforcement. Forbids diversion. Originally a response to federal pressure that motor-vehicle taxes shouldn't subsidize unrelated programs.
Portland Pipe Line Corp. v. Environmental Imp. Com'n. The Law Court's interpretive precedent on § 19's scope.
Op. 96-11. The 1996 AG opinion (Attorney General Andrew Ketterer) concluded that Highway Fund money could support ferries with motor-vehicle transportation as their principal purpose. Op. 2012-01 reaffirmed this conclusion.
Maine State Ferry Service. Operates under MaineDOT, with routes connecting Lincolnville, Rockland, Bass Harbor, and other mainland points to offshore islands. The Service's funding mix includes Highway Fund support, federal funds, ridership fares, and General Fund subsidies.
Citations
- Maine Constitution, art. IX, § 19 (Highway Fund anti-diversion)
- 23 M.R.S. § 4202 (Highway Fund)
- 23 M.R.S. § 4209 (transportation expenditures)
- Portland Pipe Line Corp. v. Environmental Imp. Com'n, 307 A.2d 1 (Me. 1973)
- Op. Me. Att'y Gen. 96-11 (Sep. 4, 1996) (the original AG opinion this update reaffirms)
Source
- Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
- Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2012/ag_20120209.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.
MAINE STATE LEGISLATURE
The following document is provided by the
LAW AND LEGISLATIVE DIGITAL LIBRARY
at the Maine State Law and Legislative Reference Library
http://legislature.maine.gov/lawlib
Reproduced from scanned originals with text recognition applied
(searchable text may contain some errors and/or omissions)
2012-01 REGIONAL OFFICES:
84 HARLOW ST., 2ND FLOOR
BANGOR, MAINE 04401
TEL: (207) 941-3070
FAX: (207) 941-3075
· William J. Schneider
ATTORNEY GENERAL 415 CONGRESS Sr, STE. 301
PORTLAND, MAINE 04101
TEL: (207) 822-0260
FAX: (207) 822-0259
STATE OF MAINE 14 ACCESS HIGHWAY, STE. 1
TEL: (207) 626-8800 OFFICE OF THE ATTORNEY GENERAL CARIBOU, MAINE.04736
TTY: 1-800-577 -6690 6 STATE HOUSE STATION TEL: (207) 496-3792
FAX: (207) 496-3291
AUGUSTA, MAINE 04333-0006
February 9, 2012
Beth L. Ashcroft, Director
Office of Program Evaluation and Government Accountability
82 State House Station
Augusta, ME 04333-0082
Dear Ms. Ashcroft:
On behalf of the Government Oversight Committee, you have asked for an update of the
opinion issued by the Attorney General on September 4, 1996 (Op. Me. Att'y Gen. 96-11,
hereafter "Op. 96-11," attached) concerning the legality of using Highway Fund money to
support certain costs of the Maine State Ferry Service. That opinion concluded that the Highway
Fund "may be used for the support of ferries whose principal purpose is the transportation of
motor vehicles." Subject to the ambiguities and uncertainties discussed below, I believe th.at
opinion remains defensible.
The Maine Constitution and the Highway Fund
Section 19, in its entirety, reads:
All revenues derived from fees, excises and license taxes relating to registration,
operation and use of vehicles on public highways, and to fuels used for propulsion
of such vehicles shall be expended solely for cost of administration, statutory
refunds and adjustments, payment of debts and liabilities incurred in construction
and reconstruction of highways and bridges, the cost of construction,
reconstruction, maintenance and repair ofpublic highways and bridges under the
direction and supervision of a state department having jurisdiction over such
highways and bridges and expense for state enforcement of traffic laws and shall
not be diverted for any purpose, provided that these limitations shall not apply to
revenue from an excise tax on motor vehicles imposed in lieu of personal property
tax.
Me. Const. art. 9, § 19 (emphasis added).
The legislativehistory of this provision is clearly summarized in this passage from the
Law Court's decision in Portland Pipe Line Corp. v. Environmental Imp. Com'n, 307 A.2d 1
(Me. 1973):
PRINTED 01' RECYCLED PAPER
In 1934 Congress became convinced that it was unfair to tax motor vehicle
) transportation unless the revenues thus derived were applied to the construction
and maintenance of highways. To further this end, Congress passed what is now
23 U.S.C. § 126, which provided that federal highway funds would be withheld
from any state which did not apply gasoline taxes and other taxes on motor
vehicle owners and operators to highway purposes.
The Maine Legislature responded in 1936 by reserving for highway purposes the
taxes derived from the 'tax imposed on internal combustion fuel.' The
Legislature, shortly thereafter, amended the statute to allow these funds to be used
for other than highway purposes pending the collection of general revenues. The
1
constitutional provision now in question was adopted by the people in 1943. The
Legislative Record does not indicate that the anti-diversion amendment was to be
any broader in scope than the-1936 statute. The Legislature and the people had
been accustomed since 1923 to the 'gasoline tax,' a tax imposed on highway
users. It was this revenue that was protected from diversion to non-highway uses.
307 A.2d at 13. 2
In Portland Pipe Line the Court also noted the approach to be used in interpreting
· constitutional provisions:
The fundamental rule of construction of statutory and of constitutional provisions
is that the language shall be interpreted in accordance with the intention with
) which it was used, if that result may be accomplished by giving words their
ordinary and usual significance ... It is proper in construing constitutional
language to give decisive weight to the history of its development.
307 A.2d 1, 12 (Me. 1973) (citation omitted).
Judicial Interpretations of Section 19
The Justices of the Law Court have read the language of Section 19 strictly. The
language, "under the direction and supervision of a state department having jurisdiction over
such highways and bridges," became the focus of a 1951 Opinion of the Justices, which was the
first to examine section 19. The Justices were asked whether a proposed law providing for
payment to the Maine Turnpike Authority of funds derived from the tax on the gasoline
consumed on the turnpike was constitutional. The Justices determined that:
The Maine Turnpike Authority not being a state department within the meaning
ofsaid provision of the Constitution, the payment to it of any part of the revenues
referred to in said provision of the Constitution... would constitute a diversion
thereof contrary to said provision of the Constitution.
1
The resolve proposing the amendment was passed in 1943. Resolves 1943, ch. 53. It was approved by the people
in September, 1944. 1945 Me. Laws at 1072 (Proclamation of Governor Sewall). ·
2
1n that case the Law Court held that fees for transferring oil from ships to storage facilities at oil terminals were
not subject to Section 19.
2
Opinion of the Justices, 146 Me. 249,256, 80 A.2d 417,420 (Me.1951)
In 1957, the Justices found that an act authorizing the reimbursement of utility companies
for relocation costs due to highway construction would violate Section 19. Interestingly, as the
Justices noted, federal law permitted these payments. Opinion of the Justices, 152 Me. 449, 454,
132 A.2d 440, 442-443 (1957). But, for the Justices, the plain language of section 19 did not:
In our opinion the relocation of a utility facility is not to be construed as
construction or reconstruction of a highway within the meaning of Art. IX, Sec.
19 of the Constitution.
We do not commonly consider that a power company in erecting a pole line or a
water district in laying a pipe in a highway is constructing a highway. To an even
lesser degree would we consider the construction of a pole line or a water pipe
across country to be the construction or reconstruction of a highway, although the
reason for the relocation was occasioned solely by changes in the highway.
The language of the Constitution should not, in our view, be extended beyond its
plain and ordinary meaning.
Id. at 152 Me. at 455-456, 132 A2d 443 (emphasis added).
The same year, the Justices of the New Hampshire Supreme Court reached the opposite
conclusion: that the comparable provision in the New Hampshire Constitution did permit funds
to be "used exclusively for the construction, reconstruction and maintenance of public highways
) in this state" to be used to reimburse a utility company for relocations costs associated with
moving a highway. Opinion of the Justices, 101 N.H. 527, 530-531 (1957). 3
Federal Law Relevant to Ferry Service Funding
Prior to 1960, ferries were not eligible for highway funds under federal law. Between
1944, when Section 19 was passed, and 1960 federal highway funds could not be used for that
purpose. In 1960, Congress amended the federal highway fund statute to permit the use of funds
for certain ferry approaches.
Notwithstanding the provisions of section 301 of this title, the Secretary may
permit ·Federal participation under this title in the construction of a project
constituting an approach to afeny, ... Such ferry may be either publicly or
privately owned and operated, but the operating authority and the amount of fares
charged for passage_shall be under the control of a State agency or official, and all
revenues derived from publicly owned or operated ferries shall be applied to
payment of the. cost of construction or acquisition thereof, including debt service,
and to actual and necessary costs of operation, maintenance, repair, and
replacement.
3
More recently, the New Hampshlre Supreme Court held that, giving their constitutional provision the strict
construction it required, use of these funds for a commuter rail project would be unconstitutional. New Hampshire
) Motor Transport Association v. State ofNew Hampshire, 846 A.2d 553 (N.H. 2004).
3
23 U.S.C. § 129(£) (1990) fl.dded by Pub. L. 86-657, §§ 4(b), 5(b), July 14, 1960, 74 Stat. 523, as
· 23 U.S.C. § 129(e). See now, 23 U.S.C. 129(b) (emphasis added). 4
Feny Service in Maine
In 1944, when Section 19 was approved by the voters, fenies were owned and
operated by private parties or by towns. As far as we have been able to determine, the
State did not own or operate any fe1Ty terminal, feny boat or feny service at that time.
Maine law provided for the licensing of persons to operate fenies by county
commissioners. R.S. 1944, ch. 79, § 77. The law also provided that "[w]henno person is
formd to keep them for the tolls, the towns in which they are established shall provide a
person to be licensed to keep them, and shall pay the expenses, beyond the amount of
tolls received, for maintaining them." R.S. 1944, ch. 79, § 78. Maine's Private and
Special Laws also contain numerous acts chartering feny companies or authorizing towns
to establish fenies. P. & S. L. 1909, ch. 258 (Island Feny Co., Casco Bay), P. & S. L.
1872, ch. 153 (People's Ferry Co., Bath & Woolwich).
Even iffenies were considered to be within the definition of highways and
bridges, Section 19 requires that Highway Fund money must be expended "under the
direction and supervision of a state department having jurisdiction over such highways
and bridges." In 1944, the State Highway Department had no jurisdiction over, nor any
duties respecting, ferries. See, R.S. 1944, ch. 20, State Highway Department. The
) Public Utilities Commission regulated and inspected "every corporation or person
... owning ... operating ... any vessel regularly engaged in the transportation of persons or
property for compensation .... " R.S. 1944, ch. 40, § 15 (XII).
State Operated Ferry Service Begins
In 1957, the provision of modem ferry service to Penobscot Bay islands under state
auspices was talcen up by the Maine Legislature. L.D. 242, presented by Mr. Baird of North
Haven, provided "[i]t shall be the duty of the State Highway Commission to operate a ferry
line . .. as part of the state highway system between the mainland and the towns ofNorth Haven,
Vinalhaven, Islesboro and Swan's Island .... " L.D. 242, § 1 (98 th Legis. 1957) (emphasis
added). The bill also provided for a bond issue of $2,500,000 and a referendum for its
ratification. The Highway Committee reported out L.D. 1555 substituting the Maine Port
Authority for the State Highway Commission in section one and removing the reference to the
state highway system. L.D. 1555 was passed. P. & S. L. 1957, ch. 190. The voters approved the
bond issue in September, 1957. 1959 Me. Laws at 1118. (Proclamation of Governor Muskie,
September 19, 1957).
4
In 1970, section 129 was amended to allow federal funds to be spent for the construction of ferry boats and further
amended in 1991 to pennit ferry terminal facilities. Pub.L. 91-605, §§ 133, 139; Pub.L. 102-240, § 1012(c)(3) &
(4). In 1993, section 410 of the FY 1993 DOT Appropriations Act (Public Law 102-388) amended 23 U.S.C. 129(c)
to expand eligible uses of Federal-aid highway funds to ferries on any route classified as a public road except an
Interstate route, and to include passenger-only ferries as well. We do not address here the current federal law
applicable to the eligibility of these ferry related costs.
4
) In a January, 1958 special session, the Legislature passed a bill, L.D. 1640, clarifying
administrative procedures for the new ferry service given the passage in September 1957 of the
bond issue. P. & S.L. 1957, ch. 210. The swnmary statement accompanying the bill explained
the change from the State Highway to the Maine Port Authority:
The original bill seeking to establish the fe1Ty service to the four Penobscot
Islands was -written to be a function of the State Highway Commission. During
the session the sponsors, because of the constitutional limitations on the use of the
highway funds, changed the responsibility from the Highway Commission to the
Maine Port Authority, a general fund operation.
L.D. 1640, Summary (98 th Legis. 1958) (emphasis added).
Our earlier opinion contained little discussion of the legislative history of Article 9, § 19
("Section 19") of the Maine Constitution, or the state of the law in Maine in 1944 when it was
adopted and in 1957 when the state began to operate a ferry service to certain Penobscot Bay
islands. In researching these issues, we found legislative history demonstrating that in 1957,
when that ferry service was created and put under the Maine Port Authority, the initial bill before
the Legislature placed the proposed ferry service under the State Highway Commission. The
final bill as enacted, however, replaced the Highway Commission with the Maine Port Authority.
Both -bills provided for a bond issue to purchase equipment and property for the ferry service.
Both bills also provided that the ferry line be operated as a "toll system to retire the bonds issued
... and to provide for all the expenses and maintenance incurred." In a later special session of
the same Legislature held in Januaiy 1958, following ratification of the bond issue, L.D. 1640, a
bill claii.fying certain adm.inistrative and financial provisions for the ferry service contains a
swnmary statement indicating that the change from the Highway Commission to the Port
Authority was made because of Section 19. This subsequent legislative history may indicate that
the members of the 98 th Legislature believed that the ferry service could not constitutionally be
placed within the Highway Commission, and we cannot predict with certainty what the outcome
of a challenge would be since the courts in Maine have not addressed the issue.
The Maine State Ferry Service was made a part of the Department of Transportation in
1981. 23 M.R.S. § 4401 (enacted by P.L. 1981, c. 456, pt. A, § 88). The Ferry Service is
responsible for operating ferry routes between the mainland and the towns of North Haven,
Vinalhaven, Islesboro, Matinicus Isle and Swan's Island for the purpose of transporting vehicles,
freight ai1.d passengers to and from these towns, ai1d the depaitment may also operate the feny
route to and from Frenchboro. The Department of Transportation has authority to adopt rules
· establishing tolls for the u~e of ferry lines by vehicles, freight and passengers, revenues from
which are to be kept in a separate fund to be used for the operation and debt retirement of the
ferry service. 23 M.R.S. § 4404.
On September 4, 1996, the Attorney General issued Op. 96-11, concluding that Highway
Funds "may be.used for the support of fe1Ties whose principal purpose is the transportation of
motor vehicles as paii of the highway system in the State" but not for passenger ferries which are
not part of that system. Op. 96-11, p. 1. Subsequently, in 2005, the Legislature created a Marine
) Highway account in the Highway Fund, describing the purpose of the account as follows:
5
2. Purpose of account. The purpose of the account is to allow the Highway Fund
to provide support to the Maine State Ferry Service that was previously provided
by the General Fund because ferries are an integral part of the highway system
and carry motor vehicles and are the only method ofvehicular transportation
available to andfrom the islands. The state support to the Marine Highway
account may not exceed 50% of the budgeted revenues th.at support the operating
cost of the Maine State Ferry Service.
23 M.R.S.A. § 4210-C(2).
Creation ofth.e Marine Highway Account in 2005 demonstrates th.at the 122nd Legislature
believed that it is constitutional to provide some degree of financial support to the Ferry Service
from the Highway Fund. However, the Court has not had occasion to address Section 19 since
1973 and we cannot predict with certainty what its view of these matters would be today. The
Maine Supreme Judicial Court has found that the language of Section 19 "should not, in our
view, be extended beyond its plain and ordinary meaning." Opinion of the Justices, 152 Me.
449,456.
Conclusion
You have asked us to update Op. 96-11, in which the Attorney General concluded that
the Highway Fund may be used for the support of ferries with a principal purpose of transporting
motor vehicles without violating Section 19. The Law· Court has made clear th.at Section 19 is to
) be strictly construed; moreover, subsequent to its adoption by the voters, legislators did not
believe that Section 19 permitted Highway Funds to be used for the ferry service. On the other
hand, those ferries th.at take cars from mainland highways to island highways are necessary for
motor vehicles to operate on the islands and can reasonably be considered a direct benefit to
those highway users. For these reasons, we continue to believe th.at spending Highway Funds on
ferries with a principal purpose of transporting motor vehicles is defensible and not
unconstitutional.
I hope this information is helpful.
)
6