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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5723 June 19, 1980 CONSTITUTIONAL LAW: Const 1963, art 9, Sec. 9 TRANSPORTATION, DEPARTMENT OF: Expenditures from transportation funds for construction of scenic trail TRANSPORTATION FUND: Expenditure for construction of trail WORDS AND PHRASES: 'Comprehensive transportation' 'Reasonable appurtenances' Transportation funds, consisting of not less than 90 percent of the specific taxes collected in accordance with Const 1963, art 9, Sec. 9, may be expended for the construction of any portion of a hiking trail which adjoins or is in close proximity to or crosses over a public highway or bridge as a reasonable appurtenance to roads, streets or bridges. The construction or maintenance of a scenic or historic trail does not constitute a 'comprehensive transportation purpose' and the balance of the specific taxes collected in accordance with Const 1963, art 9, Sec. 9, may not be employed for the construction or maintenance of any portion of a scenic or historic trail. Honorable Steve Monsma State Senator The Capitol Lansing, Michigan 48909 You have requested my opinion as to whether funds from the Michigan general transportation fund may be expended for the construction of the 'North County Trail', proposed by Congress and tentatively scheduled to extend through several northern states, including Michigan. The National Trails Systems Act, 82 Stat 90, PL 90-543, as last amended by PL 95-625, 16 USCA Sec. 1241 et seq, provides in 16 USCA Sec. 1244(c)(6) that the North County Trail is a route to be studied for designation as a national scenic or historic trail. This proposed trail is a nonmotorized system that is planned to include lanes and pathways primarily for use by hikers, with facilities for backpakers, cross-country skiers, bicyclists and horse-back riders. Further, 16 USCA Sec. 1244(a) provides that '[n]ational scenic and national historic trails shall be authorized and designated only by Act of Congress.' Const 1963, art 9, Sec. 9, as amended by Proposal M at the November 7, 1978, general election, contains four (4) paragraphs, and provides in pertinent part in its second paragraph that: 'Not less than 90 percent of the specific taxes, except general sales and use taxes and regulatory fees, imposed directly or indirectly on fuels sold or used to propel motor vehicles upon highways and on registered motor vehicles shall, after the payment of necessary collection expenses, be used exclusively for the transportation purposes of planning, administering, constructing, reconstructing, financing, and maintaining state, county, city, and village roads, streets, and bridges designed primarily for the use of motor vehicles using tires, and reasonable appurtenances to those state, county, city, and village roads, streets, and bridges.' [Emphasis supplied.] As stated in OAG, 1979-1980, No 5558, p ___ (September 10, 1979), the above-quoted language of Const 1963, art 9, Sec. 9, supra, in establishing the parameters of transportation purposes for which not less than 90 percent of the specific taxes shall be expended 'compels the conclusion that the revenue reserved for transportation . . . shall be used for these purposes and none other.' 1951 PA 51, Sec. 10b, as last amended by 1978 PA 444, MCLA 247.660b; MSA 9.1097(10c) establishes a state transportation department fund. 1951 PA 51, supra, Sec. 10k, added by 1972 PA 327, and last amended by 1978 PA 444, MCLA 247.660k; MSA 9.1097(101), which declares that 'nonmotorized transportation' qualifies as a transportation purpose under the act, authorizes the expenditure of transportation funds for nonmotorized transportation facilities and services, including bicycling. Under the second paragraph of Const 1963, art 9, Sec. 9, supra, funds expended for nonmotorized transportation purposes authorized by 1951 PA 51, Sec. 10k, are proper expenditures within the parameters of transportation purposes where such facilities and services are 'reasonable appurtenances' to 'roads, streets, and bridges.' In State ex rel Walter v Vogel, 169 Ohio St 368; 159 NE2d 892 (1959), the Supreme Court of Ohio held that lighting systems for urban portions of limited access highways were 'appurtenances' for whose construction and maintenance municipalities could properly expend motor vehicle fuel and license tax funds. The Court reasoned that a highway lighting system was similar to many other incidental and appurtenant features which foster highway safety, stating: '. . . It is for safety reasons generally that the 'road' or 'highway' of today may include such features as banked curves, lines permitting or forbidding passing, lines making the center and edges of the road, mowed and shrubbed parkways between opposing traffic lanes, lights, which are not 'traffic lights or signals,' at particularly dangerous intersections, and many other incidental and appurtenant features which contribute to safety in the operation of motor vehicles. . . .' 159 NE2d 892, 894. Under the reasoning of State ex rel Walter, supra, the objectives of highway safety are furthered by the expenditure of transportation funds for nonmotorized transportation facilities and services, pursuant to 1951 PA 51, Sec. 10k, supra. Thus, nonmotorized transportation facilities and services constitute 'appurtenances' to 'roads, streets, and bridges' within the ambit of the second paragraph of Const 1963, art 9, Sec. 9, supra, and transportation funds may be properly expended thereon, so long as such appurtenances are 'reasonable' under the circumstances. Where the portion of the hiking trail, such as the North Country Trail, adjoins, crosses over, or is in close proximity to a public highway or bridge, reasonable concerns for pedestrian and vehicular safety may arise. State ex rel Walter, supra. In such circumstances, transportation funds may properly be expended on such portion of the hiking trail to promote highway safety, for example, by the separation of vehicles and pedestrians through appropriate design. If all portions of the hiking trail were to adjoin, cross over or be in close proximity to a public highway, moneys in such fund may be expended therefor. Such expenditures, however, may be made only in circumstances where hiking trail facilities are 'reasonable appurtenances' to 'roads, streets, and bridges.' Where any portion of the hiking trail does not adjoin or is not in close proximity to a public highway, it is not reasonably appurtenant to the public highway to qualify for not less than 90 per cent fund moneys. Therefore, where a hiking trail is a reasonable appurtenance to roads, streets, or bridges, a portion of the not less than 90 percent of specific taxes earmarked for transportation purposes by the second paragraph of Const 1963, art 9, Sec. 9, supra, may be expended thereon. OAG, No 5558, supra. However, where a hiking trail, or a segment thereof, is not a reasonable appurtenance to roads, streets, or bridges, then no portion of the not less than 90 percent portion of transpotation funds may be expended on such trail. With respect to those transportation funds remaining after expenditure of that portion accounting for not less than 90 percent of specific taxes which must be expended on transportation purposes, the third paragraph of Const 1963, art 9, Sec. 9, supra, provides: 'The balance, if any, (1) of the specific taxes, except general sales and use taxes and regulatory fees, imposed directly or indirectly on fuels sold or used to propel motor vehicles upon highways and on registered motor vehicles, after the payment of necessary collection expenses; 100 percent of the specific taxes, except general sales and use taxes and regulatory fees, imposed directly or indirectly on fuels sold or used to propel aircraft and on registered aircraft, after the payment of necessary collection expenses; and not more than 25 percent of the general sales taxes, imposed directly or indirectly on fuels sold to propel motor vehicles upon highways, on the sale of motor vehicles, and on the sale of the parts and accessories of motor vehicles, after the payment of necessary collection expenses; shall be used exclusively for the transportation purposes of comprehensive transportation purposes as defined by law.' [Emphasis supplied.] The above-quoted portion provides the Legislature with authorization to define the phrase 'comprehensive transportation purposes.' In exercising its discretion, the Legislature must define the term to 'carry out the purpose of the context in which it is used.' Huron-Clinton Metropolitan Authority v Boards of Supervisors of Five Counties, 300 Mich 1, 21; 1 NW2d 430, 437 (1942). The third paragraph of Const 1963, art 9, Sec. 9, supra, thus authorizes the Legislature to define the kinds of comprehensive transportation purposes for which the balance of specific taxes, if any, may be expended. The word 'comprehensive' has been defined as 'including much; comprising many things; having a wide scope; inclusive.' Webster's New Int'l Dict., 2nd ed. Accord, Fairlawns Cemetery Ass'n v Zoning Commission of Town of New Bethel, 138 Conn 434; 86 A2d 74, 77 (1952); State ex rel Hewlett v Womach, 355 Mo 486; 196 SW2d 809, 812 (1946). The word 'transportation' has been defined as "to carry or convey from one place to another." McCann v Terhune, 12 Mich App 364, 367; 162 NW2d 906 (1968), quoting Black's Law Dict, 4th ed (1951). The term 'transport' has also been defined to mean 'pull', 'draw', 'push' or 'shove'. Langford v Rogers, 278 Mich 310, 314; 270 NW 692 (1936). Based on the foregoing, I am constrained to hold that the construction or maintenance of a hiking trail would not constitute a 'comprehensive transportation purpose' for which the balance of specific taxes, if any, may be expended thereon, pursuant to the third paragraph of Const 1963, art 9, Sec. 9, supra. In summary, funds from the not less than 90 percent portion of Michigan transportation fund earmarked for transportation purposes pursuant to the second paragraph of Const 1963, art 9, Sec. 9, supra, may be expended on any portion of the proposed North Country Trail, which adjoins or is in close proximity to roads, streets, or bridges. It is further my opinion that construction or maintenance of such portions of the proposed trail would not constitute a 'comprehensive transportation purpose' within the purview of the third paragraph of Const 1963, art 9, Sec. 9, supra. Frank J. Kelley Attorney General (1)
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