HIGHWAYS ‑- IMPROPER EXPENDITURE OF HIGHWAY FUNDS

HIGHWAYS ‑- IMPROPER EXPENDITURE OF HIGHWAY FUNDS.

Under the 1956 federal aid highway act federal funds cannot be made available for the purchase of additional rights of way to accommodate a rapid rail transit system within the highway right of way.  The use of motor vehicle funds as the state's participating money in the purchase of additional rights of way to accommodate a rapid rail transit system within the highway right of way would constitute a diversion of motor vehicle funds under the 18th Amendment to the Washington constitution.

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                                                                    July 29, 1957

Mr. Lorenz Goetz, Secretary
Washington Highway Commission
Transportation Building
Olympia, Washington                                                                                                              Cite as:  AGO 57-58 No. 104

Dear Sir:

            In your recent letter to this office you stated that a proposal had been made by the transit committee of the City of Seattle that the State, in designing Primary State Highway No. 1 between Tacoma and Everett, a portion of the interstate system of highways, provide sufficient median width to accommodate a rapid rail transit system on the highway right of way.

            In connection with this proposal the State Highway Commission through you requested the opinion of this office on the following questions:

            "1. Under the 1956 Federal Aid Highway Act, can federal funds be made available for the purchase of additional rights of way to accommodate a rapid rail transit system within the highway right of way?

            "2. Would the use of motor vehicle funds as the State's participating money in the purchase of additional rights of way  [[Orig. Op. Page 2]] for the above‑stated purpose constitute a diversion of motor vehicle funds under the Constitution of the State of Washington?

            "3. Assuming that such expenditure would not be an unconstitutional diversion of motor vehicle funds, can the state acquire right of way and construct its facilities so as to allow for the construction of a rapid transit system upon its right of way under the statutes of this state?"

            We answer the first question in the negative and the second question in the affirmative.  Our determination of question 2 renders question 3 moot.

                                                                     ANALYSIS

            A thorough examination of the several sections of the 1956 Federal Highway Aid Act failed to disclose any provision of said act which either directly or impliedly authorizes the allocation of federal funds for the purpose set out in question 1.

            It is a basic principle of law that the government of the United States is one of enumerated powers.  Robb vs. Tacoma, 175 Wash. 580.  Thus the Federal Government may only act pursuant to an enumerated power which in this instance is the Federal Highway Aid Act of 1956.  (23 U.S.C.A. § 151-175 incl., 1956 Supp.)  Inasmuch as there is no direct or implied grant of authority in said act, federal funds cannot be made available for the purchase of additional rights of way on an interstate system to accommodate a rapid rail transit system within the highway right of way.

            Although, as heretofore stated, the 1956 act has no specific provision relative to the problem raised in question 1, the following section of the Federal Highway Act (Title 23 U.S.C.A. § 55, 1956 Supp.) strongly implies said use of federal funds would be improper under the act.  Section 55 provides in pertinent part:

            "Since it is unfair and unjust to tax motor-vehicle transportation unless the proceeds of such taxation are applied to the construction, improvement, or maintenance of highways, after June 30, 1935, Federal aid for highway construction shall be extended only to those States that use at least the amounts now provided by law for such purposes in each State from State motor vehicle registration fees, licenses, gasoline taxes, and other special taxes on motor vehicle owners and operators or all kinds for the construction, improvement, and maintenance of highways and  [[Orig. Op. Page 3]] administrative expenses in connection therewith, including the retirement of bonds for the payment of which such revenues have been pledged, and for no other purposes, under such regulations as the Secretary of Commerce shall promulgate from time to time: . . ."

            In view of the fact the above section conditions the granting of federal aid upon the use by a state of its motor vehicle taxes for the construction, improvement, or maintenance of highways, we think that it was the intention of Congress that federal funds appropriated pursuant to this act should be used only for similar purposes.

            In addition, § 158 (i) of the 1956 Federal Aid Highway Program law states in part as follows:

            "(i) The geometric and construction standards to be adopted for the Interstate System shall be those approved by the Secretary of Commerce in cooperation with the State highway departments.  Such standards shall be adequate to accommodate the types and volumes of traffic forecast for the year 1975.  The right-of-way width of the Interstate System shall be adequate to permit construction of projects on the Interstate System up to such standards. . . ."

            The subsection entitled "Traffic Basis" of the geometric design standards adopted pursuant to § 158 (i) is in part as follows:

            "Interstate highways shall be designed to serve safely and efficiently the volumes ofpassenger vehicles, buses, and trucks, including tractor-trailer and semitrailer combinations and corresponding military equipment, estimated to be that which will exist in 1975, including attracted, generated, and development traffic on the basis that the entire system is completed."  (Emphasis supplied.)

            Thus, the "Traffic Basis" section enumerates in detail the type of vehicles which interstate highways are designed to accommodate.  Considering the enumeration it is evident the geometric design standards were not drawn in contemplation of the location of a rail transit system on the right of way.

            It is important to note that we realize that the foregoing discussion relative to the Federal-Aid Highway Act of 1956 involves the interpretation of the Federal  [[Orig. Op. Page 4]] statute and that we will have no control over administrative determinations and regulations pronounced by the Bureau of Public Roads for the effecting of the purposes contained in such Act.  We understand, however, that a letter has been received by the Director of Highways from the District Engineer of the Bureau of Public Roads indicating that the Federal authorities concur with the foregoing opinion that Federal funds will not be available for the acquisition of rapid rail transit railway.

            The Washington State constitutional provision pertinent to the second question is Amendment 18 (Article II, § 40) which provides as follows:

            "All fees collected by the State of Washington as license fees for motor vehicles and all excise taxes collected by the State of Washington on the sale, distribution or use of motor vehicle fuel and all other state revenue intended to be used for highway purposes, shall be paid into the state treasury and placed in a special fund to be used exclusively for highway purposes.  Such highway purposes shall be construed to include the following:

            "(a) The necessary operating, engineering and legal expenses connected with the administration of public highways, county roads and city streets;

            "(b) The construction, reconstruction, maintenance, repair and betterment of public highways, county roads, bridges and city streets; including the cost and expense of (1) acquisition of rights-of-way, (2) installing, maintaining and operating traffic signs and signal lights, (3) policing by the state of public highways (4) operation of movable span bridges, (5) operation of ferries which are a part of any public highway, county road, or city street;

            "(c) The payment or refunding of any obligation of the State of Washington, or any political subdivision thereof, for which any of the revenues described in section 1 may have been legally pledged prior to the effective date of this act;

            "(d) Refunds authorized by law for taxes paid on motor vehicle fuels;

            "(e) The cost of collection of any revenues described in this section:

             [[Orig. Op. Page 5]]

            "Provided, That this section shall not be construed to include revenue from general or special taxes or excises not levied primarily for highway purposes, or apply to vehicle operator's license fees or any excise tax imposed on motor vehicles or the use thereof in lieu of a property tax thereon, or fees for certificates of ownership of motor vehicles."

            That the special fund mentioned in Amendment 18 refers directly to the state motor vehicle fund is evident from the language of RCW 46.68.070 to wit:

            "There is created in the state treasury a permanent fund to be known as the motor vehicle fund to the credit of which shall be deposited all moneys directed by law to be deposited therein.  This fund shall be for the use of the state, and through state agencies, for the use of counties, cities, and towns for proper road, street, and highway purposes."

            The phrase in Amendment 18 which holds the key to a determination of the second question is "highway purposes" mentioned twice in the opening paragraph.

            Since the passage of Amendment 18 to the Washington Constitution in November, 1944, there has been only one judicial construction of this amendment by our court.  InState ex rel. Bugge vs. Martin 38 Wn. (2d) 834, at 839, 840, the supreme court stated that:

            "Amendment 18 was designed to insure that the motor vehicle fund would be used exclusively for highway purposes.  In order to remove any doubt as to whether the words 'highway purposes' would be regarded as broad enough to cover the various items and objectives which the framers of the amendment desired to include therein, the amendment, after providing the fund was to be used exclusively for highway purposes, then provided that 'such highway purposes shall be construed to include the following: . . .' Subdivisions (a) to (e) set forth what may be deemed an expansion of that which might otherwise be considered as being embraced within the term 'highway purposes,' when such words are given their ordinary meaning.

            "The content of the subdivisions does not limit the scope of the term 'highway purposes,' but enlarges and extends it. . . ."

            Thus the court concluded that the phrase "highway purposes" was not necessarily  [[Orig. Op. Page 6]] restricted to those objectives specifically enumerated in subdivisions (a) to (c).  However, the court did make clear that the proposed use to which motor vehicle funds may be expended must be exclusively in connection with a highway.  In theMartin case, supra, the court authorized expenditure of motor vehicle funds in order to retire bonds upon the Agate Pass Bridge.  This appears to be a very broad interpretation of the phrase "highway purposes," but proper in view of the fact that the Agate Pass Bridge was being acquired as part of the highway system.

            In the situation at hand the purchase of the extra right of way would not serve any highway purpose, since such right of way would be exclusively for the rapid rail transit system.  Therefore, it is the opinion of this office that expenditure of motor vehicle funds for the purchase of additional right of way in order for a rapid rail transit system to be built upon the median strip would constitute an expenditure of motor vehicle funds in violation of Amendment 18 of the Washington state constitution.

            In light of our determination of question 2, it would serve no useful purpose to attempt to answer question 3.  The aforementioned constitutional provision is controlling upon the question.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DOUGLAS HARTWICH
Assistant Attorney General