Could a Washington county use road funds for restricted roads inside its fairgrounds in 1966?

Plain-English summary

In 1966, the Washington Attorney General said a county could not use its county road fund to build or maintain roads inside a county fairground that were mainly for fair association employees and generally unavailable for public driving. The AG treated public access as essential to a county road: on the stated facts, the restricted fairground routes were not public highways. (Official opinion)

The opinion addressed the road fund and the described access restrictions. It did not assess a different funding source or an unrestricted fairground road.

Currency note

This opinion was issued in 1966. 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.

Common questions

Could road fund money pay for roads mainly used by fair staff?
No. The AG said the stated access restrictions kept them from qualifying as county roads.

Why did public access matter?
The cited statute defined a public highway by a right of public vehicular travel; the AG said a road closed to the public at large was not public.

Did the opinion decide whether another county fund could pay?
No. It answered only the question about county road funds.

Background and statutory framework

RCW 36.82.010 created the county road fund. RCW 36.75.010 defined county roads and public highways. The AG applied those definitions to fairground routes where the public parked outside the gates and generally did not drive on the internal roads.

Citations and references

• The official opinion states: “If the public at large is not allowed to use the road, it is not a public road.”
• It concludes that “county road fund monies could not be expended” for those roads.

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/roads-county-fairgrounds-use-county-road-fund-construction-and-maintenance

Original opinion text

Attorney General John J. O'Connell

ROADS ‑- COUNTY FAIRGROUNDS ‑- USE OF COUNTY ROAD FUND FOR CONSTRUCTION AND MAINTENANCE.

A county may not use county road funds for the construction and maintenance of roads within the area of its county fairgrounds where the roads are to be used primarily by employees of the fair association and will not generally be open to use by the public at large.

November 29, 1966

Honorable Jerry Moore
Prosecuting Attorney
Lewis County
Masonic Building
Centralia, Washington

Cite as: AGO 65-66 No. 121

Dear Sir:

By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

May a county use county road funds for the construction and maintenance of roads within the area of its county fairgrounds where the roads are to be used primarily by employees of the fair association and will generally not be open to use by the public at large?

We answer your question in the negative.

ANALYSIS

From the information set forth in your letter, it appears that your county is desirous of dedicating land, and constructing roads thereon, within the area of its county fairgrounds. The county intends, if possible, to expend county road fund monies to pay the cost of these roads. In a subsequent telephone conversation, it was disclosed that definite restrictions would be placed upon the roads thus sought to be constructed. It is our understanding that these roads would be used primarily by employees of the fair association; [[Orig. Op. Page 2]] that members of the general public would park their cars outside the gates of the fair and generally not be allowed to drive upon the roads.1/

The county road fund has been expressly created by the legislature. RCW 36.82.010 provides:

"There is created in each county of the state a county fund to be known as the 'county road fund.' Any funds which accrue to the credit of the secondary highway fund, general road and bridge fund, road district fund or any other fund of any county for use upon county roads, shall be credited to and deposited in the county road fund."

In AGO 61-62 No. 139, dated May 23, 1962, to the Honorable John Panesko, former Lewis county prosecuting attorney, we said that:

". . . no part of a county road fund, from whatever source derived may beused orexpended for other than county road, bridge, or highway purposes. . . ."

In analyzing the nature of a county road, the following statutes are worthy of consideration:

RCW 36.75.010 (5) provides that a county road is:

". . . every public highway or part thereof, outside the limits of incorporated cities and towns and which has not been designated as a state highway;"

RCW 36.75.010 (11) defines a public highway as:

". . . every way, lane, road, street, boulevard, and every way or place in the state of Washington open as a matter of right to public vehicular travel both inside and outside the [[Orig. Op. Page 3]] limits of incorporated cities and towns;"

To further clarify the meaning of a highway or public road, the following passage from Am.Jur. is appropriate:

25 Am.Jur., Highways, § 2, provides:

"A highway is a way open to the public at large, for travel or transportation, without distinction, discrimination, or restriction, except such as is incident to regulations calculated to secure to the general public the largest practical benefit therefrom and enjoyment thereof. Its prime essentials are the right of common enjoyment on the one hand and the duty of public maintenance on the other. It is the right of travel by all the world, and not the exercise of the right, which constitutes a way a public highway, and the actual amount of travel upon it is not material. . . ."2/ (Emphasis supplied.)

It appears that one of the distinguishing features between a public highway and a private road arises by reason of the restrictions placed upon the latter. If the public at large is not allowed to use the road, it is not a public road. And, of course, if it is not a public road, county road funds cannot be expended upon it.

Due to the restrictions placed upon the use of such roads sought to be constructed by your county, it is our opinion that such roads could not be categorized as county roads. Since they would not be county roads, county road fund monies could not be expended for the construction or maintenance of such roads.

We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

THOMAS E. KELLY
Assistant Attorney General

*** FOOTNOTES ***

1/It should also be pointed out that the roads in question would not be used at all during those periods in which the fairgrounds are closed, which, of course, is most of the year.

2/The Washington supreme court has approved the language emphasized. See,Roediger v. Cullen, 26 Wn.2d 690, 175 P.2d 669 (1946).