AGO Opinion 82224

March 23, 1982
Senator Elroy M. Hefner
Nebraska State Legislature
State Capitol
Lincoln, NE 68509

Dear Senator Hefner:

You have asked the following questions in regard to Legislative Bill 611:

1. For purposes of legal liability in the event of a lawsuit brought for damages occurring as a result of insufficient maintenance of a road maintained by a township, is a township treated like an incorporated municipality regardless of whether it is actually incorporated, or is the county responsible for the defense of the suit unless it clearly falls within the "incorporated municipality" category?

2. Who would a plaintiff properly sue for damages on a township-maintained road where no incorporated entity exists?

3. In the event an incorporated municipality exists within a township but the township boundaries are broader than the municipal corporate limits, who would a plaintiff sue for damages occurring on a road maintained by the township, but outside the corporate limits of the city?

4. In each such case, is the township or the county, or some combination thereof, responsible for defending the suit?

The primary source for answers to your questions is the Political Subdivisions Tort Claims Act, cited as Neb. Rev. Stat. S§23-2401, et seq., (Reissue 1977), which provides the exclusive remedy for tort claims, Christensen v. City of Tekamah, 201 Neb. 344, 268 N.W.2d 93 (1978).

Under Section 23-2402 of this Act, the following definitions are made:

"(i) Political subdivision shall include villages, cities of all classes, counties, school districts, public power districts, and all other units of local government. Political subdivision shall not be construed to include any contractor with a political subdivision;

(2) Governing body shall mean the village board of a village, the city council of a city, the board of commissioners or board of supervisors of a county, the board of directors of a public power district, and any duly elected or appointed body holding the power and authority to determine the appropriations and expenditures of any other unit of local government;"

Further, Section 23-2410 of the Act provides:

"If any person suffers personal injury
or loss of life, or damage to his property by means of insufficiency or want of repair of a highway or bridge or other public thoroughfare, which a political subdivision is liable to keep in repair, the person sustaining the loss or damage, or his personal representative, may recover in an action against the political subdivision, . . ."

The questions to answer are, thus, (a) whether townships are units of local government, and, (b) if so, what is their legal responsibility for keeping roads in repair.

The answer to question (a) is found in the case of Wilson v. Ulysses Township, 72 Neb. 807 (1904), wherein at page 812 it is stated without equivocation, "they (townships) are subdivisions of the state government upon which, for convenience, certain powers have been conferred, strictly limited however to the exercise of certain functions more easily carried out by subdivision".

The case analysis compares counties and townships and finds little difference except in degree and territorial extent of jurisdiction. This holding was later confirmed in the case of State v. Bone Creek Township, Butler County, 109 Neb. 202, 190 N.W. 586 (1922), reheating denied 109 Neb. 202, 193 N.W. 767 (1922), citing Wilson v. Ulysses Township, supra.

As regards question (b), historically, the Nebraska Supreme Court, under statutes then in existence and prior to passage of the Political Subdivisions Tort Claims Act, held that "in counties under township organization the county itself is no longer liable for ~the construction, maintenance and repair of the public highways within the several towns; that in such case the towns are chargeable with that duty, and are liable for its performance." Goes v. Gage County, 67 Neb. 616, 93 N.W. 923 (1903).
But, following later legislation, opinion of the Attorney General No. 136 of July 28, 1972, was released, a copy of which is attached, which opinion places prime responsibility for rural highways in the county board, but recognizes concurrent responsibility for the maintenance of township roads in township boards. Accepting this position, in answer to your first question, it is apparent . that either or both the township and county could be sued for damages occurring as a result of insufficient maintenance of a road maintained by a township, township being construed to mean either a "regular" township or one created to encompass only a single municipality. The same answer would apply to your remaining three questions.

You further request suggested amendatory legislation if indicated. Whether such legislation is indicated would seem to depend on whether the Legislature wishes to more sharply define and allocate legal liability between counties and townships. It would seem rather apparent that as of now, under this opinion most, if not all, lawsuits would be directed at the county.

Very truly yours,

Attorney General

July. That section was a part of the original county budget act of 1937; and' With the enactment of the new and complete Nebraska Budget Act in 1969, repeal of the old sections of the.statutes would have beeh- appropriate.. However, the legislative inadvertence in h,~vi.g neglected to~ expressly=~repeal the: old budget laws does not militate against~" the conclusion that the Nebraska Budget Act supersedes the old laws and is controlling. It is a well established pri=~ciple of statutory construction that where a legislative act is u,;=,~ple¢o reitself but is repugnant to or in conflict with prior law which ~s =~i~ih~: -referred to nor expressly repealed, the prior law is =~.l,c,,l~d by implication.' See State exrel. Meyer v. County of l.,,~c,~ttr.-173 N~b..~195, 113 N.W. 2d 63. Accordingly, it may be • ..,d th.,t S~c~3-905, R.R.S. 1943, by implication, is repealed by :;,:c 2Z-925,' Laws~ 1971, L.B. ]29, and that the former provision tot county budget ~hearings being held on the last Wednesday of J,l~, .ow has been eliminated.

Hu i361. , July 28, 1972

lil':¢3Ul':S'rliDiBY:~Carroll J= Story, ~Secretary, Board of Public Roads Classifications and Standards, Lincoln, Nebraska.
t~l'll~lOI~ I~y: Clarence A.~H. Meyer, Attorney General, BetSy
G. Berger, Assistant Attorney General.

QUE~'I'ION: 1. Can a County Board in a Township County
expend money from the Highway Allocation
Fund for improvement of any Township road?

CONCLUSION :.~ 1-:.. Yes:::

QUESTION;' 2.~*Under Section 39-2.105(2), Laws 1971, L.B.
?38, Section ], does a County have an
.- ... ~ obligation to build, construct, maintain or repair
.... and/or provide funds for-services for Township
roads? "~-~"



3. Since passage of the 1969 andq 1971 Street-and Highway Legislation have Secti~i*i 39.1001 to 39-1009, R.R.S. 1943, been impliedly repealed?



The underlying issue which your questions raise eoncern~ the responsibility of the county board in a township county~'for~ the maintenance of township roads and the source of funds for. such maintenance. Because no mention of township, roads was made in Sections 39-2102 or 39-2105, R.S. Supp., 1969, which sections classify rural highways, when they were enacted as part of L.B. 1302, questions concerning the continued status of township roads and concerning which body politic have responsibility for"them have persisted. • ....

A" review of these statutes, classifying rural highwayS,-di~losesl that rural highways are "all public highways and roads outside the limits of any incorporated municipality" according:-: to.;. Section 39-2102, R.S. Supp., 1969, that rural highways which are classified as interstate, expressway, and major arterial are the responsibility of the state according to Section 39-2105, R.S. Supp./19691~and that: the remainder of rural highways, those designated ~as . arterial, collector and local are the responsibility of the various counties, according ~o Sect/on 39-2105, Laws 1971, L.B. ?38, Section 1. The latter provision is explicit and squarely places the prime
responsibility for such rural highways in the respective county
boards: . . :.~ •

"The various counties shall have the responsibility for
the design, construction, reconstruction, maintenance, and operation of all roads classified as other arterial, collector and local under the rural highway category;* * * " .... :~

It is evident that the status of township rokds cbntin~es~':in existence and that such township roads are sabsdmed~'.~under the categories "arterial, collector and local." Further,.iit iS~e~dent= that there exists a concurrent responsibility for the maintenance of township roads in the township boards. These conclusions result from an analysis of the following provisions.


~ Sections 39-2506 and 39-2507, R.S. Supp., 1969, were enacted a~ L.B. 1312 by the 1969 Legislature and in providing-~or the distribution of the Highway Allocation Fund to countieS:, they provide the formula-for~establishing each county's share. In 39-2507 it ~tates: -:., .

~.-~ "The~ following factors and weights shall be used in determining the amount to be allocated to each of the counties for road purposes in the year 1972 and each year thereafter:

(6) Total~:.miles of county and township roads within ,~~ each county, .as. determined by the most recent inventory
av=ilable within the Department of Roads, twenty per

ThJ~:.demonstrates that the legislative classification of county rural includes township roads.

l~==other~ major indication of the legislative scheme, deriving from 1312 passed in 1969 and establishing the board of Public ~'la~sifications and Standards, is Section 39-2509, Laws 1971, 694. Section 1; Laws 197~, L.B. 844, Section2. In providing
ch,= cc~pon~ibility of the county board for providing the county of fund~, it states:

~,~. ~,.(1). ach~county shall be entitled to one h~f of the
~..~mbU~t~:~lloca~ed.~ . to it each year under the provisions of
~ecuon 39-2506.~or 39-2507, as : applicable, and section
~,39:2508 with no ~requirement for providing funds locally,
but required to match ~the ~cond one h~f on the
b=sis of 6he dollar for each two dollars it receives, with any

.,~L(~ r [he purpo~e~ of [h~ section, providing locally :~.~h~ll~jnclude, bu~ no~ be limhed to, ,provid~a~ moa~ for ~ road':~purpo~e~~ through~ the followiag;:P¢ov~ded, thai there
~hal[ no[:" b~ duplication in the following in ~he

"(a) Property taxes levied by action of. county and township boards for construction, improvement, maintenance, and repair of roads, bridges, culverts and.dralnage;.structures, for curbs, for snow removal, for grading of dirt~and gravel roads, for traffic signs and signals, for construction~"of storm sewers directly related to roads, and property taxes levied for the payment of the principal and interest on general obligation bonds for any of the foregoing; ....

There can be little doubt, then, from this express provision, that the county board may include township road levys as a part .of,its total local funds for the purpose of obtaining, ik~s ~sh~re of the Highway Allocation Fund.

A restriction that expenditures of funds whose source ali0c~ted
them for road purposes may not be expended for any other
purpose, is expressly applicable, to township, as well :as .other roads,
in Section 39-2510, R.S. Supp~, 1969. .:~ • - ~

From these provisions it is evident that the Legislature intended township roads to "be an integral part of the county road system, u.i~der the prime responsibility of the county board,~whi!e at the same time intended that township boards provide the county with some portion of the county's local funds for matching purposes. The county's responsibility, then, to expend moneys from the Highway Allocation Fund for the maintenance of township 'roads within its jurisdiction is clear. This is in accord; with a prior conclusion of the Attorney General that no implied repealer of the primary legislation concerning a township board's :authority over roads, pursuant to Sections 39-1519-1527, R. R. S~.1943, took place when L.B. 1302 and L.B. 1312 were enacted. Report otAttomey General, No. 94, January 13, 1970. Further, the recent, enactment.of Section 23.224(8), R.S. Supp., 1969, and Section 39;1906,~ Laws 1971, L.B. 966, Section 1, both providing expressly for townships to levy taxes for road purposes argues conclusively for the proposition that the Legislature intends for township boards to ~" continue to exercise responsibility for township roads.

Nor does the passage of these comprehensive highway measures impliedly repeal the county's authority to provide specially for rural mail routes, pursuant to Sections 39.1001 through 39.1012,~,R,.R, S. 1943. Section 3%1008, Laws 1972, L.B. 1038, provides for.~~the improvement of such roads by a county board' by!a"Si~i~Cial~=let;l~:of one mill, if approved by a vote of the count~~:~le~torate. The county board could use such a special levy as part of its local

fund.~ for matching purposes, according to the legislative scheme earlier discussed. In sum, it is our considered opinion that a county board in fulfilling its responsibilities for the rural mail routes may proceed pursuant to the Rural Mail Routes Act to provide specially for such road needs.

No. 137 August 8, 1972


REQUESTED BY: Donald L. Knowles, Douglas County Attorney,
Court House, Omaha, Nebraska.

Clarence A.H. Meyer. Attorney General, Calvin E. Robinson, Assistant Attorney General.


1. May notice of all future regular meetings of the county board be given in one publication, or must specific, separate notice be given for each such meeting?

CONCLUSION: 1. Specific, separate nouce is necessary.

QUESTION: 2. How is notice "sknuhaneously" to be
~ransmitted to the board rnembers?

2. Notice must be given promptly to board members, in a manner authorized by the board.


Your county board recently passed a resolution, directing the county clerk give notice of county board meetings "by twice publishing notice of the time and place for holding regular meetings of the board." We understand that this notice would be pnnted twice in a newspaper, then not given aga/n, and would be expected to 9~ve notice pertaining to all future regular meetings of the county board.

Sections 84-1401 through 84-]405 R. R.S. 1943 as amended by L.B. 1332. Nebraska Legislature, Eighty-Second Legislature, Second Session (1972), sets certain notice requirements for public meetings. Section 84.1401 now requires that the meeting be held "after advance publicized notice." Section 84-1402(1) requires "some advance publicized notice."