AGO 96-F-013.

• Court: North Dakota

North Dakota Attorney General Opinions 1996. AGO 96-F-013. STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 96-F-13Date issued: June 26, 1996Requested by: Senator Gary J. Nelson- QUESTIONS PRESENTED - I.What is a workable definition of the term "public highways" as that term is used in Article X, Section 11 of the North Dakota Constitution. II.Whether the public transportation fund and revenue appropriated to the Department of Transportation from motor vehicle registration fees for the operating costs of the Motor Vehicle Division are dedicated or non-dedicated revenue under Article X, Section 11 of the North Dakota Constitution. III.Whether the Department of Transportation's total amount of spending for purposes other than the construction, reconstruction, repair, and maintenance of public highways is limited to non-dedicated revenue amounts which have been appropriated by the Legislature for such purposes.- ATTORNEY GENERAL'S OPINIONS - It is my opinion that, for purposes of Article X, Section 11 of the North Dakota Constitution, the term "public highway" includes all roads, bridges and other structures, and everything appropriately connected with or necessarily incidental thereto, designated and built for and used by the public for the passage of motor vehicles. A. It is my further opinion that the $1.00 fee assessed to the owner of a motor vehicle at the time the motor vehicle is registered constitutes a motor vehicle registration tax and the fees constitute dedicated funds under Article X, Section 11 of the North Dakota Constitution. B. It is my further opinion that the revenue appropriated to the Department of Transportation from motor vehicle registration fees for the operating costs of the Motor Vehicle Division are not "dedicated funds"; the appropriation is the cost of administration and collection of dedicated revenue, as permitted by Article X, Section 11 of the North Dakota Constitution. III. It is my further opinion that the Department of Transportation may spend for non-highway purposes only the non-dedicated revenue appropriated by the Legislature for such purposes. It is my further opinion the Legislature may appropriate funds from sources other than those mentioned in Article X, Section 11, to be used for highway purposes. It is my further opinion the Legislature could appropriate dedicated funds to a state agency other than the Department of Transportation if the appropriation requires that the funds be used for highway purposes. - ANALYSES - I. Article X, Section 11, of the North Dakota Constitution provides: Revenue from gasoline and other motor fuel excise and license taxation, motor vehicle registration and license taxes, except revenue from aviation gasoline and unclaimed aviation motor fuel refunds and other aviation motor fuel excise and license taxation used by aircraft, after deduction of cost of administration and collection authorized by legislative appropriation only, and statutory refunds, shall be appropriated and used solely for construction, reconstruction, repair and maintenance of public highways, and the payment of obligations incurred in the construction, reconstruction, repair and maintenance of public highways. This provision dedicates the revenues from the specified sources to use for what the North Dakota Supreme Court has termed "highway purposes." Newman v. Hjelle, 133 N.W.2d 549 (N.D. 1965). In McKenzie County v. Lamb, 298 N.W. 241 (N.D. 1941), the North Dakota Supreme Court addressed whether "public highways" were limited to roads designated as part of the State Highway System. The court explained that all public roads are "public highways." Id. at 243. Thus, any roads "designated and built for and used by the public" constitute public highways. Id. For historical purposes, a highway could be considered a foot path or way for vehicles drawn by animals. See Opinion of the Justices to the Senate, 352 N.E.2d 197, 201 (Mass. 1976). However, the obvious intent of Article X, Section 11 is that the dedicated funds be used for the maintenance, construction, reconstruction, and repair of highways over which motor vehicles travel, not foot paths or similar roads that are not connected with or incidental to motor vehicle use. Cf. South Dakota Auto. Club, Inc. v. Volk, 305 N.W.2d 693, 699 (S.D. 1981) ("[T]he obvious intent of the framers and the voters was to dedicate the proceeds of the taxes on fuel used by motor vehicles on the highways for the maintenance, construction, and supervision of the highways and bridges over which those motor vehicles traveled."); In re Opinion of the Justices, 85 N.E.2d 761 (Mass. 1949) (highway understood to mean "roadway for persons and vehicles rather than structures erected for the exclusive use of railways"). Prior decisions by the North Dakota Supreme Court evidence that the term "highway" is not limited to the actual path of travel. In Brenna v. Hjelle, 161 N.W.2d 356 (N.D. 1968), the court addressed whether the construction of a culvert where...