Opinion No. 71-285 (1971) Ag ( 1971 )

COUNTY COMMISSIONERS — USE OF UNRESTRICTED HIGHWAY FUNDS The Boards of County Commissioners may not expend unrestricted County Highway Funds for the payment of dues or assessments to the Eastern Oklahoma Development District, an association formed pursuant to the provisions of the Interlocal Cooperation Act. The Attorney General has considered your request for an opinion, wherein you raise the following question: "Is it permissible for the Board of County Commissioners to use unrestricted highway funds for the purpose of paying dues to the Eastern Oklahoma Development District (EODD) Association?" Title 69 O.S. 601 [69-601] and 69 O.S. 1503 [69-1503] (1970), are dispositive of this question. Section 601 provides for county control over all public roads not taken over by the State Highway Commission and continues: ". . .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. . ." (Emphasis added) Section 69 O.S. 1503 [69-1503] provides as follows: "Money for use on county roads — County Highway Fund — (a) All monies raised for use on the County highways in each county, or apportioned to each county for road purposes, from any source, including all funds and monies derived by law, levy, taxation, or apportionment — shall, unless otherwise provided by law, be placed in the County Treasury in a fund to be known as the County Highway Fund, to be expended on order of the Board of County Commissioners on County highways as defined herein, or on State highways within their respective counties if, in the judgment of the Board of County Commissioners, such expenditure would be just and equitable and for the best interest of the County. "(b) When State or Federal Funds are available for assistance in constructing County roads or bridges, the Board of County Commissioners of any county may place on deposit with the Commission such funds from the County Highway Fund, special highway funds and proceeds of County bond issues as may be necessary to obtain such State or Federal funds, and the Commission shall have authority to accept such County funds and bond money and to use the same for the construction of County roads or bridges in the County depositing the funds, pursuant to contract agreement with the Board of County Commissioners of such county. . ." (Emphasis added) County highway funds are derived from several statutory sources, a number of which contain restrictive language. An enumeration of the restricted statutory sources of the County Highway Fund are fully set forth in Attorney General Opinion No. 71-172, dated June 28, 1971. Funds derived from 68 O.S. 1004 [68-1004](c) (1970), and 62 O.S. 335 [62-335] (1961), however, are not restricted. It is, therefore, reasonable to conclude that they may be used for the purposes for which County highway fund expenditures are authorized under 69 O.S. 601 [69-601] and 69 O.S. 1503 [69-1503] (1970). Your question, therefore, turns on whether these statutes authorize the expenditure contemplated. In making this determination it should be noted at the outset that numerous court decisions hold that Boards of County Commissioners are limited to powers specifically authorized to them. Larimore, et al v. Board of Commissioners of Okmulgee County, 200 Okl. 436, 195 P.2d 762. Allen, et al v. Board of Commissioners of Pittsburg County, 28 Okl. 778, 116 P. 175, held: "It is a settled rule that the grant of powers to Boards of County Commissioners must be strictly construed, because when acting under special authority they must act strictly on the conditions under which the authority is given. . ." Page 175. Kurn v. Helm, 182 Okl. 260, 77 P.2d 552, applied this general rule specifically to the allocation of county funds. Title 69 O.S. 601 [69-601] (1970), authorizes the Board of County Commissioners to use any unrestricted funds which are in the County Highway Fund for the purpose of constructing and maintaining county highways. It should be observed that the authority to expend moneys from such funds is delimited by the purpose stated. The words, "for this purpose", when viewed in the light of the decisions previously noted, necessarily excludes the use of unrestricted highway funds for purposes other than the construction and maintenance of county highways. Section 69 O.S. 1503 [69-1503](a) adds nothing to the statutory authorization found in Section 601. It merely provides that County Highway Fund moneys may be expended for County highways and State highways within the county. Section 69 O.S. 1503 [69-1503](b) applies where State or Federal funds have been made available to counties for assistance in constructing County roads or bridges. That section authorizes the Board of County Commissioners to use County Highway Funds to procure such State or Federal funds. A restriction is placed, however, on the authority to expend the funds thereby procured. The Board of County Commissioners may only use such funds: ". . .For the construction of County roads or bridges in the county depositing the funds, pursuant to contract agreement with the Board of County Commissioners of such county. . ." These provisions restrict expenditures from the County Highway Fund to the construction of roads and bridges. Further, all such construction is limited to the county receiving State or Federal funds. By contrast, the Articles of Agreement which created the EODD in Section 2 lists a wide-range of purposes for which the Association was formed, including: "(4) . . .Adequate land use, housing, open space, public utilities, transportation, and economic planning. . ." Section 3 of the Articles of Agreement creates within the Association the power: "(6) To contract for services with persons or firms or other units and levels of government to carry out the purpose of association." Viewing Sections 2 and 3 in the conjunctive, the Articles of Agreement do not restrict EODD expenditures to the construction and maintenance of roads and bridges. Moreover, dues paid into the EODD are ultimately expended on a district-wide basis. Expenditures under Title 69 O.S. 1503 [69-1503](b) (1970), however, are restricted to the county depositing the funds. It is, therefore, the opinion of the Attorney General that your question be answered in the negative. The Board of County Commissioners may not use unrestricted highway funds for the purpose of paying dues to the Eastern Oklahoma Development District. (Marvin C. Emerson)