AGO 07-3.

• Case Date: July 05, 2007
• Court: Maine

Maine Attorney General Opinions 2007. AGO 07-3. STATE OF MAINE OFFICE OF THE ATTORNEY GENERAL6 STATE HOUSE STATION AUGUSTA, MAINE 04333-0006 July 5, 200707-3Hon. Dennis Damon, Senate ChairHon. Boyd Marley, House ChairJoint Standing Committee on Transportation 100 State House Station Augusta, ME 04333-0100 Dear Senator Damon, Representative Marley, and Members of the Committee: You have asked for my opinion as to the obligations of both the Committee on Transportation and the Legislature as a whole with respect to the allocation of Highway Funds to the State Police in the budget. Your question arises in the context of certain conclusions reached by the Office of Program Evaluation and Government Accountability ("OPEGA") in a report it issued in February 2007 entitled, "Highway Fund Eligibility at the Department of Public Safety--an Analysis of Select Departmental Activities" ("OPEGA Report"). This Office has previously opined that the Legislature has a responsibility to make a good faith, fact-based determination as to the uses of Highway Fund money that comply with the limitations of Article IX, section 19 of the Maine Constitution ("section 19") (see discussion in Part II, below). We have also opined that in making this determination, the Legislature was not bound to accept the factual findings of the State Auditor concerning the proper allocation of Highway Fund money to the State Police. Op. Me. Att'y Gen. 80-41. We believe that these conclusions are equally applicable in the instant circumstances. The Legislature is obligated to make a good faith effort to determine what portion of the State Police budget can be allocated to activities that come within the limitations of section 19, but in making that determination neither the Transportation Committee nor the Legislature is bound by the conclusions reached by the OPEGA Report. Since it is the Legislature that bears the responsibility for deciding how to allocate Highway Fund revenues, it is within the Legislature's power to decide whether the conclusions presented in the OPEGA Report provide a sufficient factual basis upon which to make that allocation. We begin with a description of the history of section 19. We then outline the case law and prior opinions of the Attorney General that are relevant to your question. I.

The Highway Fund in the Maine Constitution, Article IX, Section 19

Article IX, section 19 of the Maine Constitution reads:

All revenues derived from fees, excises and license taxes relating to registration, operation and use of vehicles on public highways, and to fuels used for propulsion of such vehicles shall be expended solely for cost of administration, statutory refunds and adjustments, payment of debts and liabilities incurred in construction and reconstruction of highways and bridges, the cost of construction, reconstruction, maintenance and repair of public highways and bridges under the direction and supervision of a state department having jurisdiction over such highways and bridges and expense for state enforcement of traffic laws and shall not be diverted for any purpose, provided that these limitations shall not apply to revenue from an excise tax on motor vehicles imposed in lieu of personal property tax.

The Law Court discussed the history of section 19 in Portland Pipe Line Corp. v. Environmental Improvement Commission, 307 A.2d 1, 16-22 (Me. 1973). While section 19 was adopted by the people in 1943, the motor vehicle fuels tax ("gas tax") began in 1923.

The plan of the "gasoline tax" was to focus on those who derived benefits as users of the highway system as the class subject to the tax. While the entire tax has never been subject to an exemption, that part imposed without exemption was rationalized as a minimum payment by otherwise exempt users for residual benefits derived from good roads. The minimum gasoline tax collected from otherwise exempt users has also been expended for purposes other than specified in Article IX, Section 19. It is apparent to this Court that the gasoline tax statutes are intended to result in taxation of highway users.

Id. at 19 (footnotes omitted). The Court goes on to note that in 1934 Congress enacted a requirement that federal highway funds be withheld from any state that did not apply gasoline taxes and other taxes on motor vehicle owners and operators to highway purposes.(fn1) In response, an initiated bill "reserving for highway purposes the taxes derived from the 'tax imposed on internal combustion fuel" was approved by the people at the general election held in November 1936. Id. at 21. This citizen initiated measure has remained in statute since then in very nearly its original language, and appears now at 23 M.R.S.A. § 1653 ("the Highway Fund statute").(fn2) A side-by-side comparison of the initiated law and the Highway Fund statute is set forth in Attachment A to this opinion. Since its inception, this statutory language has provided that the General Highway Fund is to be used first to satisfy obligations arising from state highway and bridge construction bonds, with the remainder to be "apportioned and expended solely" for: 1) "the cost of registering motor vehicles and licensing the operators thereof;" 2) "maintenance of the State highway police" (1936) or "State Police" (current version); 3) "administration of the office and duties" of the State Highway Commission (in 1936), and subsequently the Department of Transportation; 4) "administration of the tax on internal combustion engine fuel;" 5) "payment of rebates on said tax;" 6) "improvement, construction and maintenance of highways and bridges;" and 7) "snow guards or removal." 1937 Laws of Maine 737 and the Highway Fund statute. Thus, since 1936, the statute has specifically authorized the use of the Highway Fund to support the State Police. The statute was not repealed or modified when Article IX, section 19 was adopted in 1943. It should be noted that the language of section 19 (quoted on page 2 above) is different from that of the Highway Fund statute (Attachment A hereto) in two respects. First, some of the permitted uses of the Highway Fund are described in a slightly different manner. For example, instead of the...