Honorable Anthony B. Johnson
AGO 2022-019
No. 2022-019
Alabama Attorney General Opinion
State of Alabama Office of the Attorney General
January 27, 2022
STEVEN
T. MARSHALL Attorney General
Honorable
Anthony B. Johnson
County
Attorney
Bibb
County Commission
60
Court Square West
Centreville,
Alabama 35042
Toll
Roads and Bridges - Franchises -Licenses and Permits - Public
Works - Bibb County
The
issuance of a license to establish and operate a toll
facility on an existing county road pursuant to section
23-1-81 of the Code of Alabama would not constitute a grant
of special privileges or immunities prohibited by Section 22
of the Constitution of Alabama unless it is exclusive (either
expressly or effectively because it would not be practicable
to issue such licenses to other entities). Because the
ultimate determination of whether the issuance of such a
license violates Section 22 is to be made by a court, the
safer approach would be to ensure compliance with Section 22
by substantially complying with the Competitive Bid Law.
A
licensee under section 23-1-81 (b) of the Code is not
exempted from preexisting taxes or taxes not directly related
to constructing, owning, or operating a toll road or a toll
bridge, ferry, or causeway, but would be exempted from any
additional licenses, taxes, and fees related to the licensing
of private toll roads and bridges.
Although
neither Section 22 of the Alabama Constitution nor any
statutory provision places any limits on the duration of a
license granted under section 23-1-81 of the Code, the safest
practice would be to substantially comply with the
Competitive Bid Law to act in accordance with the common-law
rule that a current administration may not enter into
agreements legally binding successor administrations.
The
establishment, operation, and maintenance of a toll road by a
private party that is issued a license pursuant to section
21-1-81 of the Code without the use of any public funds would
not be considered a "public work" for purposes of
the Alabama Public Works Law.
Dear
Mr. Johnson:
This
opinion of the Attorney General is issued in response to your
request on behalf of the Bibb County Commission.
QUESTIONS
1. Does
the issuance of a license to establish and operate a toll
facility on an existing county road pursuant to section
23-1-81 of the Code of Alabama constitute a grant of special
privileges or immunities prohibited by Section 22 of the
Constitution of Alabama when the license is not expressly
exclusive or irrevocable and when the issuance of the license
is not competitively bid?
2. Are
all rights (including property rights) incidental to the
licensee's right to establish and operate a toll facility
included in the license issued pursuant to section 23-1-81 of
the Code?
3. Is
there any limitation on the duration of a license issued
pursuant to section 21-1-81 of the Code under applicable
Alabama law?
4.
Would the establishment, operation and maintenance of a toll
road by a private party that is issued a license pursuant to
section 21-1-81 of the Code without the use of any public
funds be considered a "public work" for purposes of
the Alabama Public Works Law?
FACTS
AND ANALYSIS
You
state in your opinion request that the Bibb County Commission
is considering issuing a license pursuant to section 23-1-81
of the Code to a private party to establish, operate, and
maintain a toll facility located on an existing county road
within Bibb County. In exchange for the authority to
construct and operate a single toll plaza and to collect
tolls from vehicles passing through, the licensee would agree
to pay the County a royalty from profits generated from the
facility and to improve and maintain the roads and bridge
proximate to the facility. You ask whether such an
arrangement without competitive bidding would constitute a
grant of special privileges or immunities prohibited under
Section 22 of the Constitution of Alabama, whether all rights
incidental to the licensee's right to establish and
operate a toll facility would be included in the license
pursuant to section 23-1-81 of the Code, whether there would
be any limitation as to the duration of the agreement under
Alabama law, and whether the establishment of the toll road
would constitute a "public work" under the Alabama
Public Works Law if no public money is expended.
Section
23-1-81 of the Code authorizes county commissions to purchase
or establish toll bridges...
