February 22, 2000

ATTORNEY GENERAL OPINION NO. 2000- 10

Curtis E. Watkins

Kingman City Attorney

P. O. Box 475

Kingman, Kansas 67068

Re:	Roads and Bridges--State Highway--Designation of Highways in the State System; Procedure for Removing

Synopsis:	K.S.A. 1999 Supp. 68-406 authorizes the Secretary of Transportation to make changes to the State highway system when the changes are required for public safety, convenience, economy, classification or reclassification, but removal of a road from the State highway system involves a reclassification or revision that requires the Secretary to rely on an engineering and traffic study and conduct a public hearing. Cited herein: K.S.A. 1999 Supp. 68-406.

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Dear Mr. Watkins:

As counsel for the City of Kingman you inquire whether the Secretary of Transportation is required to conduct an engineering and traffic study and conduct a hearing prior to removing a portion of the state highway from the State highway system.

K.S.A. 1999 Supp. 68-406 states that the Secretary "shall designate, adopt and establish, and may lay out, open, relocate, alter, vacate, remove, redesignate and reestablish highways" in every county in the state. In regard to removal, the statute is very specific:

"The secretary of transportation shall make such revisions, classifications or reclassifications in the state highway system as are found on the basis of engineering and traffic study to be necessary, and such revisions, classifications or reclassifications may include, after due public hearing, removal from the system of roads which have little or no statewide significance, and the addition of roads which have statewide importance and will provide relief for traffic congestion on existing routes on the system. All roads which have been placed upon the state highway system shall be a part of the state highway system, but changes may be made in the state highway system when the public safety, convenience, economy, classification or reclassification require such change. The total mileage of the state highway system shall not be extended except by act of the legislature. Highways designated under this section shall be state highways, and all other highways outside of the city limits of cities shall be either county roads or township roads as provided for by law. The state highway system thus designated shall be constructed, improved, reconstructed and maintained by the secretary of transportation from funds provided by law." (Emphasis added.)

The statute is clear on its face. The Secretary shall revise, classify or reclassify a road when the revision is found to be necessary on the basis of an engineering and traffic study. If removal of the road is warranted because the road has little or no statewide significance, removal of the road can be effected only after a public hearing. Additionally the Secretary may make changes to the state highway system when the changes are required for public safety, convenience, economy, classification or reclassification, but removal of a road involves a reclassification or revision necessitated by a study and effected by a hearing.

Construction of a statute is a question of law and involves the application of a hierarchy of rules. State v. Donlay, 253 Kan. 132 (1993). Primary among these rules is that the intent of the Legislature controls if the intent can be determined from the statute's plain language. State v. Scherzer, 254 Kan. 926 (1994). When a statute is clear on its face, the court reviewing the statute must give effect to the intention of the Legislature as expressed, rather than determine what the law should or should not be. Martindale v. Robert T. Tenny, M.D., PA., 250 Kan. 621, 626 (1992). State v. Haug, 237 Kan. 390 (1985); U.S. v. O'Brien, 686 F.2d 850 (C.A. Kan., 1982); City of Overland Park v. Nikias, 209 Kan. 643 (1972). Accordingly, it is our opinion that K.S.A. 1999 Supp. 68-406 authorizes the Secretary of Transportation to make changes to the State highway system when the changes are required for public safety, convenience, economy, classification or reclassification, but removal of a road from the State highway system involves a reclassification or revision that requires the Secretary to rely on an engineering and traffic study and conduct a public hearing.

Very truly yours,

CARLA J. STOVALL

Attorney General of Kansas

Guen Easley

Assistant Attorney General

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