Opinion No. (1979) ( 1979 )

Dear Honorable Davis,

The Attorney General is in receipt of your request for an opinion wherein you have asked the following question:

A county road intersects another road. Approximately one-quarter of amile down the intersecting road is a fence. The rest of the intersectingroad serves a private landowner. Are the county commissioners required tomaintain the one quarter mile?

69 O.S. 653 (1968) sets out the system by which the State Highway Department shall numerically designate each section line road.

69 O.S. 654 (1970) requires that the counties determine a primary road system within each county.

The boards of county commissioners of the various counties in this state shall, within one (1) year after the passage of this act, prepare maps which shall classify, designate, locate, create and determine, and indicate thereon by appropriate symbol or designation, what highways and public roads shall constitute the county primary road system of their respective counties. Said maps shall be certified by said commissioners as official classification maps of the county primary road system of the county and copies thereof shall be filed with the State Highway Commission and the State County Commissioners Association. Amendments of said maps shall be prepared and copies thereof furnished to the aforesaid agencies as often as is necessary to show the current status of said system.

69 O.S. 601(A) prescribes the duties of County Commissioners on the county highway system.

"The county highway system shall be composed of all public roads within any county, less any part of any road or roads which may be taken over as a state highway by the Commission. It shall be the duty of the board of county commissioners in each county to construct and maintain as county highways those roads which best serve the most people of the county. For this purpose the board of county commissioners is authorized to use any funds which are in the county highway fund, subject to statutory restrictions on the use of any of such funds, together with any money derived from any agreement entered into between the commission and the federal government, any county or any citizen or group of citizens who have made donations for that purpose. The boards of county commissioners of the various counties shall have exclusive jurisdiction over the designation, construction and maintenance and repair of all of the county highways and bridges therein."

The County Commissioners have a duty to maintain the primary roads of the County Highway System and the maintenance of secondary roads is discretionary on the part of the Commissioners. In building and maintaining county highways, boards of county commissioners must consider which highways will best serve the most people in the county. No such restrictions are put on board's designation of section lines as roads where roads are to be constructed and maintained by the citizens who will receive the most benefit from the roads. Oldfield v. Donelson, Okla.565 P.2d 37 (1977).

It is, therefore, the opinion of the Attorney General that a board ofcounty commissioners has the mandatory duty to construct and maintainroads designated as primary county highways, and a discretionary duty tomaintain all other roads which best serve the most people of the county.

JAN ERIC CARTWRIGHT, ATTORNEY GENERAL OF OKLAHOMA

VICTOR G. HILL, JR., ASSISTANT ATTORNEY GENERAL