Opinion No. (1979) ( 1979 )

Dear Director Ward,

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

May a municipality make improvements to city streets, which aredesignated state or federal highways on the state highway system, withoutthe consent and cooperation of the State Transportation Commission?

11 O.S. 36-101 (1971) states that:

"The title to streets, roads and public ways within the limits of a municipality which have been dedicated and accepted by the municipal governing body is held by the municipality in trust for public use and enjoyment.

A municipal governing body may, in the manner provided by law:

(1) Regulate and control the use of streets, roads and other public ways within the limits of the municipality;

(2) Authorize the execution of any and all contracts, easements and permits for the use of roads, streets, and other public ways as the governing body deems to be in the public interest;

(3) Establish and change the grade of any street, avenue, lane, alley or other place;

(4) Open, straighten, widen, extend or improve any street, avenue, lane, alley or other place by grading, paving, constructing, macadamizing, chatting or graveling, curbing, guttering, draining or otherwise improving the same;"

11 O.S. 36-112 (1971) states that:

"A. The municipal governing body, in its discretion, may provide for the payment of the cost for improving street intersections and alley crossings out of the general revenue.

B. The State Highway Commission is authorized in its sole discretion to enter into agreements with the governing body of any municipality for participation with State Highway Construction and Maintenance Funds in the cost of any improvements on streets which are a part of the State Highway System. Such agreements may provide for the award and supervision of the contract by the municipality. The state's share of the cost is to be due and payable upon completion of the project."

69 O.S. 901 (1971) states that the Commission may participate in, or pay, the cost of constructing, improving, lighting or maintaining any street of a municipality when such street is a continuation of a State Highway System.

The Highway Code as shown in 69 O.S. 101[69-101] et seq. (1971) which became effective May 2, 1968, sets out the intent of the legislature as it applies to the roads and highways of the State of Oklahoma.

69 O.S. 101(e) (1971) provides:

To this end it is the intent of the legislature to make the State Highway Commission and its director; and the Department of Highways of the State of Oklahoma acting through the Commission, custodian of the State Highway System and to provide sufficiently broad authority to enable the Commission and the Department to function adequately and efficiently in all areas of appropriate jurisdiction, subject to the limitations of the Constitution and the Legislative mandate hereinafter imposed.

69 O.S. 304(a)(b) (1971) provides further that:

(a) The construction and maintenance of the State Highway System, and all work incidental thereto, shall be under the general supervision and control of the Transportation Commission.

(b) The Commission shall have power to make all final decisions affecting the work provided for herein, and all reasonable rules and regulations it may deem necessary, not inconsistent with this code, for the proper management and conduct of such work and for carrying out the provisions of this article, in such manner as shall be to the best interest and advantage of the people of this state.

69 O.S. 501(b) (1971) sets out the Department of Transportation's responsibility for the State Highway System as follows:

"When the Commission shall have taken over any highway, or part thereof, as a state highway, the Commission shall become responsible for the construction, repair and maintenance of such highway and for this purpose shall be authorized to use any state highway 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."

47 O.S. 15-102(b) (1971) provides that:

"No local authority shall erect or maintain any stop sign or traffic-control signal at any location so as to require the traffic on any state or federal highway to stop before entering or crossing any intersecting highway unless approval in writing has first been obtained from the Department of Highways."

47 O.S. 15-105(a)(b) (1971) provide further that:

(a) The Department of Highways shall place and maintain such traffic-control devices, conforming to its manual and specifications, upon all state and federal highways as it shall deem necessary to indicate and to carry out the provisions of this act or to regulate, warn or guide traffic.

(b) No local authority shall place or maintain any traffic control device upon any highway under the jurisdiction of the Department of Highways except by the latter's permission. Laws 1961, P. 419, 15-105.

47 O.S. 15-106(a)(b) (1971) continues to delineate authority as shown:

(a) Local authorities in their respective jurisdictions shall place and maintain such traffic-control devices upon highways under their jurisdiction as they may deem necessary to indicate and to carry out the provisions of this act or local traffic ordinances or to regulate, warn or guide traffic. All such traffic-control devices hereafter erected shall conform to the state manual and specifications.

(b) Local authorities in exercising those functions referred to in the preceding paragraph with regard to streets and highways which are a continuation of state or federal numbered highways shall be subject to the direction and control of the State Highway Commission.

47 O.S. 15-108 (1971) provides that:

"The Department of Highways with reference to state and federal highways and local authorities with reference to other highways under their jurisdiction may designate through highways and erect stop or yield signs at specified entrances thereto, or may designate any intersection as a stop intersection or as a yield intersection and erect stop signs or yield signs at one or more entrances to such intersection."

The legislative intent is to enable the State of Oklahoma through the Oklahoma Department of Transportation to have an integrated system of safe and efficient roads with efficient control and management to insure the health and safety of its citizens, and it is essential that the Department of Transportation have the assistance and mutual cooperation of counties and municipalities to accomplish this purpose.

Attorney General Opinion No. 79-58 is hereby withdrawn and this opinion is substituted as shown.

It is, therefore, the opinion of the Attorney General that yourquestion be answered as follows: A municipality is permitted to regulate control and make improvementsupon streets, roads and other public ways within its corporate limits; buta street or road which is a continuation of the state highway systemwhich is included in a project proposed for an improvement by a citywould be subject to the final direction and control of the OklahomaDepartment of Transportation.

JAN ERIC CARTWRIGHT, ATTORNEY GENERAL OF OKLAHOMA

VICTOR G. HILL, JR., ASSISTANT ATTORNEY GENERAL