[1993/oagheade.htm]

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