ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR RECENT REQUEST FOR AN ATTORNEY GENERAL OPINION REGARDING THE DUTY, IF ANY, OF A BOARD OF COUNTY COMMISSIONERS TO MAINTAIN AND IMPROVE THE STREETS OF A MUNICIPALITY UNDER THE PROVISIONS OF 11 O.S. 36-113 (1991). THE PROVISIONS OF 11 O.S. 36-113 HAVE BEEN CONSTRUED PREVIOUSLY IN SEVERAL ATTORNEY GENERAL OPINIONS, AND THE PRIMARY ISSUE NOW RAISED IN YOUR REQUEST IS ADDRESSED BY CLEARLY APPLICABLE STATUTORY LAW. ALSO, THE PROVISIONS OF 36-113 NECESSARILY REQUIRE A DETERMINATION OF FACTUAL ISSUES. BASED ON ALL OF THE FOREGOING, THIS OFFICE HAS DETERMINED THAT YOUR REQUEST SHOULD BE ANSWERED THROUGH THIS INFORMAL LETTER. THE DISCUSSION WHICH FOLLOWS IS NOT, THEREFORE, AN OFFICIAL OPINION OF THE ATTORNEY GENERAL. RATHER, THE FOLLOWING ANALYSIS AND CONCLUSIONS, WHILE SOLELY MY OWN, HAVE BEEN REACHED AFTER CAREFUL RESEARCH OF THE QUESTIONS YOU HAVE RAISED.
INTRODUCTION
YOU INDICATED IN YOUR REQUEST THAT THE TOWN OF CHOUTEAU IS OF THE BELIEF THAT THE MAYES BOARD OF COUNTY COMMISSIONERS MUST MAINTAIN CHOUTEAU'S ROADS BECAUSE THE COUNTY RECEIVES STATE MONIES EACH YEAR FOR THE MAINTENANCE AND IMPROVEMENT OF COUNTY ROADS, AND CHOUTEAU'S ROADS ARE INCLUDED IN THE CALCULATION WHICH DETERMINES THE AMOUNT OF STATE MONIES THE COUNTY RECEIVES FOR THIS PURPOSE. THE TOWN APPARENTLY BELIEVES THAT 11 O.S. 36-113 (1991) IMPOSES A MANDATORY DUTY ON THE MAYES COUNTY BOARD OF COUNTY COMMISSIONERS TO USE A PROPORTIONATE SHARE OF THE STATE FUNDS RECEIVED TO MAINTAIN AND IMPROVE CHOUTEAU'S ROADS AND STREETS.
FOR PURPOSES OF THIS INFORMAL OPINION, I WILL ASSUME THAT THE "STATE MONIES" REFERRED TO IN YOUR REQUEST ARE THOSE STATE MONIES WHICH FLOW INTO THE COUNTY HIGHWAY FUND, PROVIDED FOR IN 69 O.S. 1503.1 (1991). THERE ARE MULTIPLE SOURCES OF FUNDS FOR THE COUNTY HIGHWAY FUND, ALL OF WHICH ARE PROVIDED FOR IN STATE STATUTES AND ARE COLLECTED BY THE STATE. THESE SOURCES ARE SET FORTH IN DETAIL IN A.G. OPIN. NOS. 63-159, 71-172 AND 89-042. FOR EXAMPLE, IN A.G. OPIN. NO. 89-042, THE ATTORNEY GENERAL EXPLAINED THAT, PRESENTLY, THE FUND SHARES IN THE MOTOR FUEL TAX (68 O.S. 501 ET SEQ., AS AMENDED), THE MOTOR FUEL/DIESEL FUEL IMPORTER FOR USE TAX (68 O.S. 601 ET SEQ., AS AMENDED), THE SPECIAL FUEL USE TAX (68 O.S. 701 ET SEQ., AS AMENDED), THE GROSS PRODUCTION TAX (8 O.S. 1001 ET SEQ., AS AMENDED), AND THE FEES, TAXES AND PENALTIES COLLECTED PURSUANT TO THE OKLAHOMA MOTOR VEHICLE LICENSE AND REGISTRATION ACT (47 O.S. 1101 ET SEQ., AS AMENDED).
IN ESSENCE, THEN, YOUR REQUEST PRESENTS THE SINGULAR ISSUE OF WHETHER A BOARD OF COUNTY COMMISSIONERS, PURSUANT TO 11 O.S. 36-113, HAS A DUTY TO IMPROVE AND MAINTAIN THE STREETS AND ROADS OF A TOWN WITH A POPULATION OF LESS THAN 2,500, AND TO UTILIZE A PROPORTIONATE SHARE OF ITS COUNTY HIGHWAY FUND TO ACCOMPLISH THIS TASK.
II. TITLE 11 O.S. 36-113 IS AN EXCEPTION TO THE GENERAL RULE THAT COUNTIES HAVE NO JURISDICTION TO MAINTAIN STREETS WITHIN THE BOUNDARIES OF A MUNICIPALITY. IT MANDATES THAT A