REQUESTED BY: F. A. Gossett, III, Dodge County Attorney, Fremont, Nebraska, 68025. Are roads within Sanitary and Improvement Districts in `unincorporated areas' within the meaning of section39-1501, R.R.S. 1943, requiring the county board to maintain them?
No, but roads on the county road system may be maintained, even if within a Sanitary and Improvement District.
Your letter inquired about road maintenance in unincorporated villages, as well as in Sanitary and Improvement Districts. Section 39-1405, R.R.S. 1943, specifically declares streets in unincorporated villages to be a part of the public road system, and requires the county or township to maintain them. Our opinions of May 14, 1963 (number 68, Report of Attorney General, 1963-1964), and of March 12, 1975 (number 41, Report of Attorney General, 1975-1976), are consistent with this.
With regard to Sanitary and Improvement Districts, however, after issuance of the 1963 opinion, the law was changed by adding subsection 5 to section 39-1501, R.R.S. 1943, requiring the county to maintain roads in unincorporated areas if dedicated to the public and improved to the county's standards. Our 1975 opinion attempted to interpret this. Subsequent to issuance of the 1975 opinion, however, the law was again changed. The following, inter-alia, was added to section 39-1405, R.R.S. 1943:
"The county board of commissioners in counties having a population of 60,000 inhabitants or more may, after the clearance of snow and ice from the county road system, clear snow and ice from all public streets of incorporated sanitary and improvement districts in the same manner as if such streets were part of the county road system."
Since the wording is precatory, it would appear that such snow removal activities are, for commissioner type counties of a population of 60,000 or more, optional and not required. And, adverting to the maxim of interpretation, `expressio unius est exclusio alterius', the converse would appear to be true for all counties which are less than 60,000 in population; that is, that such counties do not have legal authority for such snow removal activities. We believe, as was stated in our 1963 opinion, however, that such counties may still remove snow and ice on roads which are a part of the designated county road system, even though a segment of such road might be within a Sanitary and Improvement District. The aforesaid statutory language states that the county road system shall be cleared.
The above quoted language which was added to section39-1405, R.R.S. 1943, however, does something else. It refers to public roads within incorporated Sanitary and Improvement Districts. Since sections 39-1405 and 39-1501, R.R.S. 1943 are so closely related as to subject matter, we believe that the sections must be read in pari materia. And since the language refers to Sanitary and Improvement Districts as incorporated entities, it would appear to follow that an area included within a Sanitary and Improvement District, is therefore, not an unincorporated area within the provisions of subsection 5 of section 39-1501, R.R.S. 1943. Furthermore, the language `. . . in the same manner as if such streets were part of the county road system' (emphasis added), makes clear that the mere fact a public street is in a Sanitary and Improvement District does not cause it to be incorporated into the county road system, as are streets of unincorporated villages.