Executive Director's Report - May/June 1999

Why Don’t You Ask Them to Paint Your House While They’re There?
The Association staff occasionally receives calls from private citizens. Most such callers just want information about laws applicable to counties. They usually want to know whether or not county commissions have authority to engage in some particular activity. A few think the Association is a regulatory agency and, therefore, can compel a county commission, county commissioner or county employee to do something or refrain from doing something.

A nice lady, let's call her Mrs. Brantly, called me several years ago complaining that she could not get her county commissioner to replace a drainage pipe under her driveway. She said the commissioner explained that it would be against the law for the county to replace the pipe. She said she could not understand the commissioner's response because the pipe was originally installed by the county over 20 years ago. After expressing some choice feelings about the quality of representation her district was receiving on the county commission, she added that she had been paying taxes in the county many years and, therefore, deserved to have the county replace the drainage pipe under her driveway.

Experience has taught me that there are always two sides to every story, so I began to ask Mrs. Brantly some questions. I asked her where she lived and she said, "out in the county", which I interpreted to mean in the unincorporated area. I then inquired as to whether the location of the existing pipe was on or off the public right-of-way. She explained that her driveway was about one-fourth mile long and the existing pipe was at a location about one-half the length of the driveway.

At this point in the conversation I was getting real excited and ready to respond with "blazing guns." But I thought of one more question - "Do you live on a county road or a state road?" "A state road," she said. With that last answer burning in my ears, I proceeded to give her a stern lecture. My response to her inquiry is provided in the space below.

"First, Mrs. Brantly, there are at least two provisions in the Alabama Constitution that make what you want the county, or the individual commissioner, to do illegal. Amendment No. 112 to the Constitution of Alabama of 1901 provides in pertinent part that ‘The legislature shall not have power to authorize any county, city, town or other subdivision of this state to lend its credit, or to grant public money or thing of value in aid of, or to any individual…' It has been established that it would not be a violation of Amendment No. 112 for the county to place pipe or other structures under a driveway if the pipe or other structure is located on the county's public right-of-way. As you stated, Mrs. Brantly, the pipe you want the county to replace is located about one-eighth of a mile from a state-owned public road. The placing by the county of new pipe at the location you described would be a clear violation of the Constitution, even if the location was adjacent to a county road.

"The voters who ratified Amendment No. 112 were very wise in doing so. The concept is this - citizens of the state, and under certain circumstances others, are required to pay various state and local taxes. The proceeds of these taxes are put in various pots out of which the governments provide services to all citizens. While all taxpayers do not receive equal benefits from government services, they are generally available to all citizens on an equal basis. For example, people who purchase gasoline in Alabama pay a gasoline tax. The proceeds of the gasoline tax are to be used to provide a public system of highways, roads and bridges to be available to all citizens. Stated differently, consumers of gasoline do not pay gasoline taxes so they can have county government build private roads for their exclusive benefit. This may seem ridiculous, but it is no more ridiculous than your requesting the county commission to come on to your private property and install a new pipe, paid for with public funds. If this were to be done, you would be receiving a 'thing of value' in violation of Amendment No. 112.

"Even if Amendment No. 112 did not exist, Mrs. Brantly, the county would face yet another constitutional provision that would probably make it unlawful for it to perform the work you requested. The pipe and necessary equipment and personnel needed to perform the work you requested would probably be funded by revenue received from the state in the form of proceeds from state-levied highway user fees (gasoline taxes, license taxes and vehicle tag fees). Amendment No. 354 to the Alabama Constitution of 1901 provides in pertinent part that 'No moneys derived from any fees, excise or license taxes, levied by the state, relating to registration, operation or use of vehicles upon the public highways… and no moneys derived from any fee, excise or license taxes levied by the state, relating to fuels used to propel such vehicles…, shall be expended for other than… costs of construction, reconstruction, maintenance and repair of public highways and bridges…' Since the pipe you want replaced is clearly on your private property, the county would be in violation of the Constitution if it did what you requested.

"If these two constitutional provisions did not exist, the county still would not have authority under the general laws of the state to replace your pipe. The various general laws of the state that levy the taxes and fees, the proceeds from which counties receive for road and bridge purposes, have specific provisions which direct how such are to be used by the counties. None of these provisions authorize the counties to replace pipe on private property.

"Even if there were no constitutional or statutory provisions in Alabama's law which prohibited the county from replacing your pipe, there are practical and common sense reasons your commissioner or the county would not want to do so. If the county replaced your pipe, people from all over the county would want the same treatment. Before long, people would be calling their commissioners wanting them to do all sorts of private work, like scraping and paving driveways, digging holes for septic tanks and fish ponds, and burying dead animals. If the county agreed to do such things, it would find itself in a position of having to divert an enormous amount of revenue away from the roads and bridges which are there to benefit all citizens of the county.

"Mrs. Brantly, if after hearing all this discussion, you are still insistent on receiving special treatment and you are successful in getting your commissioner to replace your pipe, why don't you ask him to paint your house while he and the county employees are out there?"

County commissioners in most counties are routinely approached by citizens who want them to perform work on private property. Most, like Mrs. Brantly, do not understand or even know about the constitutional or statutory provisions that prohibit such activities. Such citizens do not understand that they are being unfair to other taxpayers and that they are asking county commissioners to break the law. They also do not understand that most county commissions do not have revenues sufficient to adequately maintain their existing roads and bridges.

I am aware that there exist local acts that allow some county commissions to perform private work under certain circumstances. Commissioners in these counties should be careful to not allow the authority to perform private work under these local acts siphon off so much of the county's revenues that it causes the roads and bridges all the citizens use to suffer.