THE MUNICIPALITY APPROPRIATED ITS OWN FUNDS FOR THE PURPOSE. IN OTHER WORDS, WHERE THE COUNTY AGREED WITH A MUNICIPALITY OF LESS THAN 2,500 TO MAINTAIN ITS STREETS, IT COULD DO SO, BUT ONLY AT THE EXPENSE OF THE MUNICIPALITY. IN A.G. OPIN. NO. 71-294, THE ATTORNEY GENERAL AFFIRMED A.G. OPIN. NO. 63-159 AND, AS A RESULT, FOUND THAT, UNLESS A MUNICIPALITY COULD RAISE THE NECESSARY FUNDS TO PAY FOR THE MAINTENANCE OF ITS STREETS BY THE COUNTY, THEN 36-113 HAD NO BENEFICIAL EFFECT AS FAR AS THE MUNICIPALITY WAS CONCERNED. IN OTHER WORDS, WHILE 36-113 DID PROVIDE AN EXCEPTION TO THE GENERAL RULE THAT COUNTIES HAVE NO JURISDICTION TO MAINTAIN A MUNICIPALITY'S STREETS, IT DID REQUIRE THAT THE MUNICIPALITY PAY FOR THE MAINTENANCE.
BY AMENDING 36-113 IN 1989, AS EVIDENCED BY THE PORTIONS OF THE STATUTE UNDERSCORED ABOVE, THE LEGISLATURE CLEARLY EVIDENCED ITS INTENT TO REMOVE THE NECESSITY OF ANY SUCH CONSIDERATION. THE AMENDMENT EXPRESSLY AUTHORIZED A COUNTY TO UTILIZE THE COUNTY HIGHWAY FUND TO PERFORM MAINTENANCE OF STREETS WITHIN A MUNICIPALITY OF LESS THAN 2,500. IT ALSO PROVIDED THAT THE MUNICIPALITY MAY OR MAY NOT HAVE TO BEAR ANY COST OF SUCH MAINTENANCE. HOWEVER, THESE STATUTORY AUTHORIZATIONS ARE MADE DEPENDENT ON AGREEMENTS BETWEEN THE COUNTY AND THE MUNICIPALITY. EVEN MORE IMPORTANTLY, THEY ARE PERMISSIVE IN NATURE, I.E., THE RELEVANT STATUTORY LANGUAGE PROVIDES THAT, IF SO AGREED, "THE COST TO . . . MAINTAIN ANY OF THE STREETS OF THE MUNICIPALITY MAY BE PAID OUT OF THE COUNTY HIGHWAY FUND." (EMPHASIS ADDED). UNDER GENERAL RULES OF STATUTORY CONSTRUCTION, THE USE OF THE WORD "MAY," RATHER THAN THE WORD "SHALL," MAKES THE RELEVANT PROCEDURE PERMISSIVE AND NOT MANDATORY. STATE EX REL. CARTWRIGHT V. OKL. NATURAL GAS, 640 P.2D 1341 (OKLA.1982).
BASED ON THE FOREGOING RULE, IT APPEARS THAT 36-113, WHILE PERMITTING THE USE OF THE COUNTY HIGHWAY FUND BY A BOARD OF COUNTY COMMISSIONERS IN PERFORMING ITS DUTIES THEREUNDER, DOES NOT MANDATE THE USE OF THE FUND. EVEN THOUGH THE USE OF THE COUNTY HIGHWAY FUND IS NOT MANDATORY UNDER 36-113, THE MOST IMPORTANT FEATURE OF THE STATUTE IS THAT IT NOW DOES ALLOW A COUNTY AND A SMALL TOWN TO ENTER INTO AN AGREEMENT WHEREBY THE COUNTY HIGHWAY FUND MAY BE UTILIZED. PRIOR TO 1989, THIS OPTION WAS SIMPLY NOT AVAILABLE AND A MUNICIPALITY HAD TO EITHER PAY FOR THE COUNTY'S REPAIRS OR IMPROVEMENTS OR NOT HAVE THE BENEFIT OF 36-113.
FINALLY, IT SHOULD BE NOTED THAT THE ACTUAL TERMS OF ANY AGREEMENT ENTERED INTO PURSUANT TO 36-113 PRESENT QUESTIONS OF FACT THAT COULD NOT BE ANSWERED AS A MATTER OF LAW IN AN ATTORNEY GENERAL'S OPINION.
IT IS, THEREFORE, THE OPINION OF THE UNDERSIGNED ATTORNEY THAT 11 O.S. 36-113 (1991) MANDATES THAT A COUNTY MAINTAIN AND IMPROVE THE ROADS OF A MUNICIPALITY OF LESS THAN 2,500 AND PERMITS UTILIZATION OF THE COUNTY HIGHWAY FUND TO DO SO, IF IT IS DONE BY AGREEMENT. HOWEVER, THERE IS NOTHING IN 36-113 WHICH MANDATES THE USE OF THE COUNTY HIGHWAY FUND TO