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AGO 1966 No. 121 - November 29, 1966
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John J. O'Connell | 1957-1968 | Attorney General of Washington


ROADS ‑- COUNTY FAIRGROUNDS ‑- USE OF COUNTY ROAD FUND FOR CONSTRUCTION AND MAINTENANCE.

A county may not use county road funds for the construction and maintenance of roads within the area of its county fairgrounds where the roads are to be used primarily by employees of the fair association and will not generally be open to use by the public at large.

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                                                               November 29, 1966

Honorable Jerry Moore
Prosecuting Attorney
Lewis County
Masonic Building
Centralia, Washington

                                                                                                              Cite as:  AGO 65-66 No. 121

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            May a county use county road funds for the construction and maintenance of roads within the area of its county fairgrounds where the roads are to be used primarily by employees of the fair association and will generally not be open to use by the public at large?

            We answer your question in the negative.

                                                                     ANALYSIS

            From the information set forth in your letter, it appears that your county is desirous of dedicating land, and constructing roads thereon, within the area of its county fairgrounds.  The county intends, if possible, to expend county road fund monies to pay the cost of these roads.  In a subsequent telephone conversation, it was disclosed that definite restrictions would be placed upon the roads thus sought to be constructed.  It is our understanding that these roads would be used primarily by employees of the fair association;  [[Orig. Op. Page 2]] that members of the general public would park their cars outside the gates of the fair and generally not be allowed to drive upon the roads.1/

             The county road fund has been expressly created by the legislature.  RCW 36.82.010 provides:

            "There is created in each county of the state a county fund to be known as the 'county road fund.'  Any funds which accrue to the credit of the secondary highway fund, general road and bridge fund, road district fund or any other fund of any county for use upon county roads, shall be credited to and deposited in the county road fund."

            In AGO 61-62 No. 139, dated May 23, 1962, to the Honorable John Panesko, former Lewis county prosecuting attorney, we said that:

            ". . . no part of a county road fund, from whatever source derived may beused orexpended for other than county road, bridge, or highway purposes. . . ."

            In analyzing the nature of a county road, the following statutes are worthy of consideration:

            RCW 36.75.010 (5) provides that a county road is:

            ". . . every public highway or part thereof, outside the limits of incorporated cities and towns and which has not been designated as a state highway;"

            RCW 36.75.010 (11) defines a public highway as:

            ". . . every way, lane, road, street, boulevard, and every way or place in the state of Washington open as a matter of right to public vehicular travel both inside and outside the  [[Orig. Op. Page 3]] limits of incorporated cities and towns;"

            To further clarify the meaning of a highway or public road, the following passage from Am.Jur. is appropriate:

            25 Am.Jur., Highways, § 2, provides:

            "A highway is a way open to the public at large, for travel or transportation, without distinction, discrimination, or restriction, except such as is incident to regulations calculated to secure to the general public the largest practical benefit therefrom and enjoyment thereof.  Its prime essentials are the right of common enjoyment on the one hand and the duty of public maintenance on the other.  It is the right of travel by all the world, and not the exercise of the right, which constitutes a way a public highway, and the actual amount of travel upon it is not material. . . ."2/   (Emphasis supplied.)

            It appears that one of the distinguishing features between a public highway and a private road arises by reason of the restrictions placed upon the latter.  If the public at large is not allowed to use the road, it is not a public road.  And, of course, if it is not a public road, county road funds cannot be expended upon it.

            Due to the restrictions placed upon the use of such roads sought to be constructed by your county, it is our opinion that such roads could not be categorized as county roads.  Since they would not be county roads, county road fund monies could not be expended for the construction or maintenance of such roads.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

THOMAS E. KELLY
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/It should also be pointed out that the roads in question would not be used at all during those periods in which the fairgrounds are closed, which, of course, is most of the year.

2/The Washington supreme court has approved the language emphasized.  See,Roediger v. Cullen, 26 Wn.2d 690, 175 P.2d 669 (1946).

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