Opinion No. (1990) ( 1990 )

** PART II **

CAN A MUNICIPALITY APPROPRIATE AND EXPEND ITS GENERAL FUND MONIES FOR CONSTRUCTION OF SIDEWALKS OR REPAIR OF SIDEWALKS?

ANY REASONABLE ANALYSIS OF YOUR QUESTION IN LIGHT OF THE FOREGOING TEST WOULD RESULT IN THE CONCLUSION THAT THE EXPENDITURE OF TAX DOLLARS FOR THE CONSTRUCTION OR REPAIR OF SIDEWALKS IN A MUNICIPALITY WOULD BE PROPERLY TERMED AN EXPENDITURE FOR A PUBLIC PURPOSE. A MUNICIPALITY EVEN HAS A DUTY TO KEEP ITS SIDEWALKS SAFE FOR USE BY THE PUBLIC, AS DISCUSSED SUPRA.

IN ADDITION TO CONSTITUTIONAL CONSIDERATIONS AS TO THE EXPENDITURE OF TAX DOLLARS, THERE ARE SEVERAL STATUTES, FOUND PRIMARILY AT 11 Ohio St. 17-101 (1981) ET SEQ., AS AMENDED, AND 68 Ohio St. 2482 — 68 Ohio St. 2492, AS AMENDED, WHICH PROVIDE THE STATUTORY PROCEDURE FOR THE ANNUAL APPROPRIATION OF REVENUES BY MUNICIPALITIES, INCLUDING THOSE IN THE GENERAL FUND. THE FIRST STATUTE, 11 Ohio St. 17-101, HAS BEEN CONSTRUED PREVIOUSLY BY THE OKLAHOMA SUPREME COURT TO PROHIBIT THE TRANSFER OF ANY MUNICIPAL FUNDS UNLESS THERE HAS BEEN AN APPROPRIATION IN THE MANNER PROVIDED BY LAW. ARTHUR V. CITY OF STILLWATER, SUPRA, 611 P.2D AT 642.

FURTHERMORE, ANY MONIES RECEIVED OR EXPENDED BY A MUNICIPALITY MUST BE ACCOUNTED FOR BY FUND AND ACCOUNT. 11 Ohio St. 17-207. EACH MUNICIPALITY SHALL PREPARE A BUDGET FOR THE GENERAL FUND AND FOR OTHER FUNDS AS THE GOVERNING BODY MAY REQUIRE PURSUANT TO 11 Ohio St. 17-212 (1981). ID. 17-212 PROVIDES, IN PART:

"A MUNICIPALITY SHALL ESTABLISH FUNDS CONSISTENT WITH LEGAL AND OPERATING REQUIREMENTS. EACH MUNICIPALITY SHALL MAINTAIN ACCORDING TO ITS OWN NEEDS SOME OR ALL OF THE FOLLOWING FUNDS OR LEDGERS IN ITS SYSTEM OF ACCOUNTS:

1. A GENERAL FUND TO ACCOUNT FOR ALL MONIES RECEIVED AND DISBURSED FOR GENERAL MUNICIPAL GOVERNMENT PURPOSES . . . (EMPHASIS ADDED)".

THE STATUTE IMMEDIATELY FOLLOWING 17-212 LISTS THE TYPES OF COMMON EXPENDITURES WITHIN THE GENERAL AND OTHER FUNDS OF A MUNICIPALITY WHICH INCLUDE, "AT THE LEAST," PERSONAL SERVICES, MATERIALS AND SUPPLIES, CHARGES FOR REPAIR AND MAINTENANCE AND CAPITAL OUTLAYS, INCLUDING IMPROVEMENTS OTHER THAN BUILDINGS AND ALL CONSTRUCTION, RECONSTRUCTION OR IMPROVEMENTS TO REAL PROPERTY PURSUANT TO A CONTRACT. 11 Ohio St. 17-213 (1981).

T THIS POINT, I SHOULD ALSO NOTE THAT 68 Ohio St. 2701 (1990) AUTHORIZES A MUNICIPALITY TO ASSESS, LEVY, AND COLLECT TAXES FOR GENERAL AND SPECIAL PURPOSES OF MUNICIPAL GOVERNMENT AS THE LEGISLATURE MAY LEVY AND COLLECT FOR PURPOSES OF STATE GOVERNMENT, EXCEPT AD VALOREM PROPERTY TAXES. ANY REVENUES DERIVED FROM A TAX AUTHORIZED BY 68 Ohio St. 2701 WHICH ARE NOT DEDICATED TO A LIMITED PURPOSE SHALL BE DEPOSITED IN THE MUNICIPAL GENERAL FUND. IN ARTHUR V. CITY OF STILLWATER, SUPRA, THE COURT CONSTRUED 68 Ohio St. 2489 (1981) TO REQUIRE THAT ALL REVENUES BE DEPOSITED IN THE GENERAL FUND AND APPROPRIATED ANNUALLY BY THE GOVERNING BOARD OF THE MUNICIPALITY. THE STATUTE IMMEDIATELY FOLLOWING 68 Ohio St. 2489, 68 Ohio St. 2490 (1981), DEFINES AND ENUMERATES ITEMS OF APPROPRIATION REPRESENTING SPECIFIC PURPOSES. IT INCLUDES AN APPROPRIATION FOR A DEPARTMENT OF "ROADS AND HIGHWAYS AND/OR STREETS AND ALLEYS," FOR "MAINTENANCE AND OPERATION," INCLUDING "ALL ITEMS, ARTICLES AND MATERIALS CONSUMED WITH THE USE IN THE REPAIR, MAINTENANCE, CONSTRUCTION OR RECONSTRUCTION OF ROADS, BRIDGES, HIGHWAYS, STREETS AND ALLEYS.

CONCLUSION

IN SUMMARY, THERE IS LITTLE DOUBT THAT NOT ONLY DOES A MUNICIPALITY HAVE THE POWER TO CONSTRUCT OR REPAIR SIDEWALKS, IT EVEN HAS A DUTY TO KEEP THEM IN A REASONABLY SAFE CONDITION. ALSO, ANY EXPENDITURE OF TAX MONIES MUST BE FOR A PUBLIC, I.E., GOVERNMENTAL PURPOSE AND CANNOT BE APPROPRIATED FOR ANY INDIVIDUAL OR ENTITY. SURELY THE CONSTRUCTION OR REPAIR OF SIDEWALKS, WHICH ARE GENERALLY HELD IN TRUST BY A MUNICIPALITY FOR THE BENEFIT OF THE PUBLIC AND FOR WHICH IT HAS A DUTY TO KEEP SAFE, ENCOMPASS SUCH PUBLIC OR GOVERNMENTAL PURPOSES. ANY MONEY FROM THE GENERAL FUND SPENT BY THE MUNICIPALITY ON GENERAL MUNICIPAL GOVERNMENTAL PURPOSES, INCLUDING THE CONSTRUCTION OR REPAIR OF SIDEWALKS, SHOULD BE BUDGETED, ACCOUNTED FOR AND APPROPRIATED IN THE MANNER PROVIDED BY LAW. THIS WOULD MEAN COMPLIANCE WITH THE STATUTORY PROCEDURE FOR THE ANNUAL APPROPRIATION OF REVENUES BY MUNICIPALITIES, INCLUDING 11 Ohio St. 17-101 ET SEQ., AS AMENDED AND 68 Ohio St. 2482 — 68 Ohio St. 2492, AS AMENDED. THERE CAN BE LITTLE DOUBT THAT THE CONSTRUCTION OR REPAIR OF SIDEWALKS INVOLVE GENERAL MUNICIPAL PURPOSES AND ARE APPROPRIATE EXPENDITURES OR ITEMS OF APPROPRIATION WITHIN THAT SAME STATUTORY FRAMEWORK. THEREFORE, ASSUMING THAT A MUNICIPALITY FOLLOWS THE STATUTORY PROCEDURE FOR THE ACCOUNTING, BUDGETING AND APPROPRIATION OF REVENUES IN ITS GENERAL FUND FOR THE PURPOSE OF CONSTRUCTING OR REPAIRING SIDEWALKS, IT COULD PROPERLY EXPENDED MONIES IN THE GENERAL FUND FOR THE CONSTRUCTION OR REPAIR OF ITS SIDEWALKS.

NOTWITHSTANDING THE FOREGOING CONCLUSIONS, I MUST ADD ONE IMPORTANT CAVEAT. ANY RESOLUTION OF YOUR QUESTION IN A SPECIFIC SITUATION WOULD NECESSARILY INVOLVE A DETERMINATION OF THE OWNERSHIP OF THE PROPERTY UPON WHICH THE SIDEWALKS IN QUESTION ARE LOCATED. WHETHER THE SIDEWALKS IN QUESTION ARE LOCATED ON PUBLIC PROPERTY, PRIVATE PROPERTY OR SOME COMBINATION THEREOF, OR EXIST OVER SOME TYPE OF EASEMENT, WILL BE A CRUCIAL ISSUE THAT MUST BE RESOLVED PRIOR TO ANY MEANINGFUL APPLICATION OF THE LEGAL AUTHORITIES CITED HEREIN. FOR EXAMPLE, THE LEGALITY OF USING MUNICIPAL GENERAL FUND MONIES TO CONSTRUCT OR REPAIR SIDEWALKS LOCATED ENTIRELY ON PRIVATE PROPERTY AND NOT USED BY THE PUBLIC IN GENERAL WOULD BE QUITE DIFFERENT THAN THE CONSTRUCTION OR REPAIR OF-SIDEWALKS BETWEEN A CITY HALL AND THE CITY LIBRARY. THE OWNERSHIP OF THE PROPERTY INCLUDING A PARTICULAR SIDEWALK OR SIDEWALKS WOULD, OF COURSE, BE A QUESTION OF FACT.

(WILLIAM D. LAFORTUNE)