CITIES AND TOWNS ‑- LOCAL IMPROVEMENTS ‑- VOLUNTARY CONTRIBUTION BY CITY INCLUDED IN DETERMINING TOTAL COST OF PROJECT

CITIES AND TOWNS ‑- LOCAL IMPROVEMENTS ‑- VOLUNTARY CONTRIBUTION BY CITY INCLUDED IN DETERMINING TOTAL COST OF PROJECT.

In determining whether or not the owners of property subject to at least sixty percent of the cost of a proposed local improvement have protested the improvement, a city must, under RCW 35.43.180, include as a part of the total cost whatever amount of money the city voluntarily contributes thereto.

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                                                                    April 4, 1962

Honorable Robert A. Perry
State Representative, 45th District
2700 1st Avenue
Seattle, Washington

                                                                                                              Cite as:  AGO 61-62 No. 109

Dear Sir:

            By letter previously acknowledged you have requested this office to render an opinion upon a question which we paraphrase as follows:

            Pursuant to the provisions of RCW 35.43.180, should a city include as a part of the total cost of a proposed improvement that portion which the city has voluntarily agreed to assume?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            RCW 35.43.180, the statute in question, provides in material part:

            "The jurisdiction of the legislative authority of a city or town to proceed with any local improvement initiated by resolution shall be divested by a protest filed with the city or town council within thirty days from the date of passage of the ordinance ordering the improvement, signed by the owners of the property within the proposed local improvement district subject to sixty percent or moreof the total cost of the improvement including federally-owned or other nonassessable property as shown and determined by the preliminary estimates and assessment roll of the proposed improvement district: . . ." (Emphasis supplied.)

             [[Orig. Op. Page 2]]

            Upon inquiry, we have been informed that this phrase has been a source of dispute in several cities and has not been accorded a uniform interpretation.  We shall therefore proceed under the premise that the phrase is ambiguous.  As such, it is open to construction in order to arrive at the legislative intent.  State v. Houck, 32 Wn. (2d) 681, 203 P. (2d) 693 (1949).

            It is a fundamental rule of construction that the legislative intent must be gleaned from a consideration of the entire act.  As stated by our court inDeGrief v. Seattle, 50 Wn. (2d) 1, 11, 297 P. (2d) 940 (1956):

            "'. . . In the process of construction, the intention of the lawmakers must be extracted from a consideration of all the provisions of the act.'  [Citation omitted.]"

            It is to be noted that under the provisions of RCW 35.43.180,supra, the total cost of the improvement is derived from the preliminary estimates and assessment roll of the proposed improvement district.  The provisions relating to the preliminary estimates and assessment roll are contained in RCW 35.43.130, which provides in material part:

            "Upon the filing of a petition or upon the adoption of a resolution, as the case may be, initiating a proceeding for the formation of a local improvement district, the proper board, officer, or authority designated by charter or ordinance to make the preliminary estimates and assessment roll shall cause an estimate to be made ofthe cost and expense of the proposed improvement and certify it to the legislative authority of the city or town together with all papers and information in its possession touching the proposed improvement, a description of the boundaries of the district, a statement of what portion of the cost and expense of the improvement should be borne by the property within the proposed district, a statement in detail of the local improvement assessments outstanding and unpaid against the property in the proposed district, and a statement of the aggregate actual valuation of the real estate including twenty-five percent of the actual valuation of the improvements in the proposed district according to the valuation last placed upon it for the purposes of general taxation."  (Emphasis supplied.)

             [[Orig. Op. Page 3]]

            The underscored language shows that the preliminary estimates and assessment roll is to contain two cost figures, to wit:  (1) The total cost of the proposed improvement, and (2) the portion of such total cost to be borne by the property within the proposed district.  Thus, if the portion of the improvement cost to be contributed by the city were excluded from the total cost of the proposed improvement, the sixty percent computation provided for in RCW 35.43.180,supra, would be based upon that portion of the improvement cost to be borne by the property and not upon the total cost of the improvement.  This would be directly contrary to the express mandate of the legislature in RCW 35.43.180,supra, providing that such computation is to be based upon thetotal cost of the improvement.

            It is significant to note that prior to amendment in 1957, RCW 35.43.180 provided that the jurisdiction of the city to proceed with the proposed improvement would be divested if a protest were signed by the owners of the property within the proposed district subject to sixty percent or more of thecost of the improvement.  See § 1, chapter 28, Laws of 1949.  Under this provision, it was arguable that "cost of the improvement" meant only that cost to be borne by the property owners within the proposed district.

            In 1957, the legislature amended the statute by inserting the word "total" immediately preceding the word "cost." 1/   See § 12, chapter 144, Laws of 1957.  It is a general rule of statutory construction that a change in legislative purpose must be presumed from a change in the wording of a statute.  In re Phillips' Estate, 193 Wash. 194, 74 P. (2d) 1015 (1938).  In our opinion, the only purpose that can reasonably be attributed to the legislature in amending the statute to read "total cost" in lieu of "cost," is that of correcting the former ambiguity, thereby making it clear that the sixty percent computation is to be based upon the total cost of the improvement and not merely upon so much of such cost as should be borne by the property owners.

            Finally, we direct your attention to RCW 35.43.160, which provides in material part:

            "No city or town shall proceed with a local improvement initiated by petition, if it appears from the preliminary estimates and  [[Orig. Op. Page 4]] assessment roll that the amount of the estimated cost and expense thereon, which is to be assessed against the property in the proposed district, when added to all other outstanding local improvement assessments against the property in the proposed district (excluding penalties and interest and excluding assessments for diking, drainage, sanitary fill or for filling any street to the established grade over any tideflats or tidelands or for storm or for sanitary sewer or water mains) exceeds the aggregate actual valuation of the real estate . . ."  (Emphasis supplied.)

            The language underscored clearly demonstrates that in those instances where the legislature intended only so much of the total cost of the improvement as should be borne by or assessed against the property in the proposed district to be the governing factor, it expressly so provided.

            Accordingly, we conclude that the phrase "total cost of the improvement," as used in RCW 35.43.180,supra, is to be construed literally and would therefore necessarily encompass whatever amount of money the city has voluntarily agreed to contribute thereto.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General