March 17, 1993

ATTORNEY GENERAL OPINION NO. 93- 37

Barry L. Arbuckle

Valley Center City Attorney

707 N. Waco, Suite 101

Wichita, Kansas 67203-3937

Re:	Roads and Bridges; Roads--County and Township Roads; General Provisions--Secondary Road System; Classification of Roads in Noncounty Unit Road System

Synopsis:	Based upon the facts provided, Main street in Valley Center as it proceeds west from Meridian street to the city limits is part of the county secondary road system and consequently the Sedgwick county board of county commissioners is required to maintain and improve it. Cited herein: K.S.A. 68-101; 68-506; 68-506; 68-506f; 68-1701; 68-1702; 68-1703; 68-1704.

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Dear Mr. Arbuckle:

As city attorney for Valley Center, you inquire whether the Sedgwick board of county commissioners is responsible for the maintenance of Main street in Valley Center by virtue of its status as a "connecting link" in the Sedgwick county road system pursuant to K.S.A. 68-506f. You also inquire concerning the interpretation of "maintenance" in a road context.

K.S.A. 68-506f states, in relevant part, as follows:

"The board of county commissioners of any county and the governing body of any city having a population of less than 5,000 which is located within such county are hereby authorized to enter into agreements for the maintenance of streets within such cities which form connecting links in the system of county roads and highways included in the secondary road system pursuant to article 17 of chapter 68 of the Kansas statutes annotated. . . . In the absence of agreement between the county and such cities regarding the maintenance of such connecting links it shall be the duty of the county to maintain all such connecting links in the county road and highway system."

It is the opinion of this office that Main street as it extends to the western limits of the city is not a connecting link because it is included in the secondary road system and, consequently, the Sedgwick county commissioners are responsible for its maintenance and improvement pursuant to K.S.A. 68-506(b) which states, in relevant part, as follows:

"Whenever any county secondary road or highway . . . is located partly within and partly without a city . . . by and with the consent of the governing body the board of county commissioners is hereby given power and authority and required to designate such public road or highway as part of the county road or highway system, and it shall be improved and maintained as other parts of the county road system, except that the governing body of such city may aid in the construction, maintenance and improvement of such road or highway as it would were the road or highway wholly within the corporate limits of the city. . . ." (Emphasis added).

This opinion is based upon certain facts, culled from Sedgwick county engineer, David Spears and Kansas department of transportation bureau chief, Larry Emig, regarding Main street as it extends west from Meridian street in Valley Center to the city limits.

Meridian street enters Valley Center from the south. On the Sedgwick county highway map, it is designated as eligible for the receipt of federal highway funds and is denominated FAS 304 (federal-aid-secondary). Main street is an east-west street and proceeds west from Meridian. According to county engineer Spears, Main street has been designated by the county as eligible for receipt of federal highway funds and the official county highway map indicates that the FAS 304 designation proceeds south on Meridian and follows Main street as it continues to the western city limits where FAS 304 then proceeds north.

Sedgwick county has not adopted the county unit road system and, therefore, K.S.A. 68-506 applies. With these facts in mind, it is necessary to review state and federal highway legislation to provide a background for application of K.S.A. 68-506(b).

The inception of the federal aid highway program came in 1916 with the enactment of the federal aid road act which appropriated $5,000,000.00 to assist states in the construction of rural post roads. Chapter 264 of the Laws of 1917, the predecessor to K.S.A. 68-506, was enacted to create the state highway commission which served as the conduit for receipt of federal funds. The act of 1917 inaugurated a new system for the control and maintenance of public highways giving the state highway commission and state highway engineer considerable supervisory power. The boards of county commissioners and county engineers were required to classify and designate the roads in their counties, none being excepted. All the roads that were not designated to be county roads were declared to be township roads. Restrictions were imposed as to mileage of roads that might be designated as county roads and also provided limitations based on the assessed valuation of counties, thus evidencing an intent to bring all roads into a single system and within the scope of the act. Irvin v. Finney County, 106 Kan. 171 (1920). A county road was defined as a "main traveled highway which connects the cities and principal market centers of each county with each other." Section 15 of chapter 264 provided that whenever a main traveled highway was located partly within and partly without a city, the board of county commissioners was given the authority - although not required - to designate the highway as part of the county road system and when so designated was required to improve and maintain it. In 1925, the Kansas legislature amended K.S.A. 68-506 to require county commissioners to designate those main traveled highways located partly within and partly without a city as part of the county road system.

The federal aid highway act of 1944 (Public Law 521) amended the act of 1917 and created a secondary road system which was defined as "roads in rural areas, including farm to market roads, rural mail routes and school bus routes. . . ." $150,000,000.00 was allocated for projects in the secondary road system including those aforementioned roads which lay either outside or inside of municipalities of less than 5,000 population. The funds were to be expended on a system of roads selected by the state highway department in cooperation with the county commissioners. U.S. Code Congressional Service, 78th Congress, 2d Session 1944. [In 1958, Congress revised and consolidated 40 separate laws on the subject of federal aid to roads and enacted 23 U.S.C. 103 et seq. 23 U.S.C. 103(c)(1) established the federal aid secondary system which provided that state highway departments and local road officials would select roads that would be eligible for the receipt of federal funds. In making those selections, farm to market routes, rural mail routes, and public school bus routes could be included.]

With the inauguration of the secondary road system established by Congress in 1944, the Kansas legislature enacted chapter 272, the predecessor to K.S.A. 68-1701, which established a secondary road system consisting of the same roads enumerated in the federal act. Except for minor changes, K.S.A. 68-1701 et seq. remains virtually unchanged from its enactment in 1945.

K.S.A. 68-1701 states as follows:

"There shall be designated in the state of Kansas a system of roads which, for the purposes of this act, shall be known as the secondary road system, including farm to market roads selected in accordance with the provisions of this act, rural mail routes and school bus routes not on the state highway system, the construction, reconstruction and maintenance of which shall be under the jurisdiction of the board of county commissioners of each county." (Emphasis added.)

In 1986, K.S.A. 68-506(b) was amended to replace "main traveled highways" with "county secondary roads or highways or county minor collector roads or highways". Chapter 252, section 2 required that county commissioners classify and designate highways within three classes: secondary roads or highways which includes all county roads and highways designated for inclusion in the secondary roads system in accordance with K.S.A. 68-1701, county minor collector roads or highways, and township or local service roads. K.S.A. 68-101(3) defines a county road as all roads designated as such by the county commissioners including roads on the secondary road system.

It is the opinion of this office, based upon information from Sedgwick county engineer Spears and KDOT engineer Emig that Main street as it proceeds west from Meridian has been designated by the Sedgwick county commissioners as eligible for federal highway funds and, consequently, is part of the secondary road system in this state. K.S.A. 68-506(b) provides that a secondary road located partly within and partly without a city - which is the situation here - is required to be designated by the county commissioners as part of the county road system and that it is the commissioners duty to keep it "improved and maintained as other parts of the county road system."

There are no Kansas cases interpreting "maintenance" or "improvement" in a road context. "Maintain" is synonymous with repair. Thompson v. Bracken County, 294 S.W.2d 943, 946 (Ky. 1956). It means to hold or keep in a particular state. Thompson. "Improvement" means to make better the original status; to enhance in value or quality. Builders Land Company v. Martens, 112 N.W.2d 189, 190 (Ia. 1963).

The secondary road system, codified in federal law at 23 U.S.C. 103(c)(1), was repealed by the intermodal surface transportation efficiency act of 1991 (ISTEA) (P.L. 102-240). Instead of a secondary road system, ISTEA requires each state to reclassify roads and streets in accordance with guidelines promulgated by the secretary of transportation in order to become eligible for federal funding. According to both Sedgwick county engineer Spears and Kansas department of transportation Emig the route formally designated as FAS 304 has been reclassified as a "major collector" under ISTEA provisions and, if approved, will be eligible for federal funds. Its present designation under ISTEA is "rural secondary 304".

Since K.S.A. 68-506 and 68-1701 et seq. have not been amended since the enactment of ISTEA, the secondary road system as it exists in this state is still intact and since Main street is part of the secondary road system, the Sedgwick county commissioners have a duty to improve and maintain it.

In light of the history of federal and state road legislation, it is reasonable to speculate that should those statutes be amended, the amendments will conform and compliment ISTEA so that all roads currently designated as eligible for federal funds (such as FAS 304) will continue that status under the new legislation.

Very truly yours,

ROBERT T. STEPHAN

Attorney General of Kansas

Mary Feighny

Assistant Attorney General

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