BOARD OF REGENTS ‑- CONSTITUTIONAL LAW ‑- AUTHORITY TO ISSUE BONDS SAFEGUARDING MILITARY EQUIPMENT

BOARD OF REGENTS ‑- CONSTITUTIONAL LAW ‑- AUTHORITY TO ISSUE BONDS SAFEGUARDING MILITARY EQUIPMENT.

RCW 28.80.130 (19) authorizing the Board of Regents of Washington State College to issue bonds to safeguard military equipment, does not violate Wash. Const. Art. VIII, § 1 or § 5.

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                                                                 January 30, 1953 

Board of Regents
State College of Washington
Pullman, Washington                                                                                                              Cite as:  AGO 51-53 No. 472

 Attention:  Mr. Carl Pettibone 

Gentlemen:

             Mr. Marshall Neill has referred your letter of January 12, 1953, to this office.  We acknowledge receipt of same, in which you request advice whether the Board of Regents of the State College has authority under RCW 28.80.130 (19) to issue bonds to safeguard military equipment, particularly in view of a recent opinion of the Oregon attorney general to the effect that such authority conferred upon their colleges violated their Constitution.

             Our conclusion may be summarized as follows:

             RCW 28.80.130 (19) authorizing the Board of Regents of Washington State College to issue bonds to safeguard military equipment, does not violate Wash. Const. Art. VIII, § 1 or § 5.

                                                                      ANALYSIS

             RCW 28.80.130 expressly authorizes the Board of Regents of the State College of Washington to issue such bonds.  (Similar authority is granted the Regents of the University of Washington by RCW 28.77.130, and in Opinion No. 51-53-415, this  [[Orig. Op. Page 2]] office held that the Regents of Eastern Washington College of Education had the same power by implication, in the absence of an express statute).

             Since the Board of Regents of the State College is authorized by statute to execute these bonds, the only other question is whether the grant of such power violates any provision of our state constitution.

             You indicated that the Oregon attorney general's office had expressed the opinion that Oregon statutes, similar to ours, were unconstitutional.  We wrote to that office in order to determine which provisions of the Oregon Constitution they thought were violated by such statutes.

             In reply, the Oregon attorney general pointed out two constitutional provisions, very similar to ours, under which he thought the bonds were vulnerable to attack.  The first was their prohibition against lending the credit of the state.  The second was their debt limitation provision.  Both are contained in Article XI, § 7, of the Oregon Constitution.

             Washington Constitution Article VIII, § 5 provides:

            "The credit of the state shall not, in any manner be given or loaned to, or in aid of, any individual, association, company or corporation.

             We doubt that the state's "credit," in the constitutional sense, is in any way loaned under such bonds as these.  It is not necessary to determine that question, however, since the limitation is only upon such lending of credit to"any individual, association, company or corporation."  We think that any lending of credit which might be involved would be in favor of the United States Government, a situation not within the prohibition of Constitution Article VIII, § 5.

             The remaining question is whether the grant of power to execute these bonds violates the debt limitation expressed in Const. Art. VIII, § 1.  We should first inquire whether, in the constitutional sense, any debt at all has been created.

             In Gruen v. State Tax Commission, 35 Wn. (2d) 1, 211 P. (2d) 651, the court quoted with approval from State ex rel. Capitol Addition Bldg., Comm., v. Connelly, 39 N.M. 312, 46 P. (2d) 1097, 100 A.L.R., as follows:

              [[Orig. Op. Page 3]]

            "'"The idea of a 'debt' in the constitutional sense is that an obligation has arisen out of contract, express or implied, which entitles the creditor unconditionally to receive from the debtor a sum of money, which the debtor is under a legal, equitable, or moral duty to pay without regard to any future contingency."  [Seward v. Bowers, 37 N.M. 385, 24 P. (2d) 153.]'"  (Emphasis supplied)

             Further, in the Gruen opinion, the court said:

             "A debt within the meaning and purview of the constitutional provision is that which in any event the state is bound to pay."  (Emphasis supplied.)

             Conceding that our constitutional provision makes the limitation applicable to all debts either "direct" or "contingent," nevertheless we are not free to place our own interpretation upon that clause.  Since our supreme court has consistently held that the word "debt" as used in Article VIII, § 1, does not include contingent liabilities, we cannot see how the execution of such bonds could be a debt at all, in the constitutional sense.  It follows, of course, that if such a contingent liability is not a debt, the bonds giving rise thereto would not be vulnerable to attack under our debt limitation clause.

             In view of the supreme court decisions construing our debt limitation clause, we must respectfully disagree with the Oregon Attorney General upon the second ground set forth in support of his opinion, insofar as it might apply in the state of Washington.

             We conclude that RCW 28.80.130, authorizing the Board of Regents of Washington State College to issue bonds to safeguard military equipment, is not in conflict with any provision of our constitution.

 Very truly yours,
DON EASTVOLD
Attorney General 

RALPH M. DAVIS
Assistant Attorney General