CITIES AND TOWNS ‑- THIRD CLASS-FLOOD CONTROL PROJECT ‑- REVENUE BONDS ‑- PLEDGE OF PARKING METER REVENUE TO PAY BONDS

CITIES AND TOWNS ‑- THIRD CLASS-FLOOD CONTROL PROJECT ‑- REVENUE BONDS ‑- PLEDGE OF PARKING METER REVENUE TO PAY BONDS.

Cities of the third class may not use revenue derived from parking meters for redemption of bonds issued to acquire money to finance flood control improvements.

                                                              - - - - - - - - - - - - -

                                                              September 20, 1962

Honorable Earl Coe
Director, Department of Conservation
335 General Administration Building
Olympia, Washington

                                                                                                              Cite as:  AGO 61-62 No. 166

Dear Sir:

            By letter previously acknowledged you requested the opinion of this office on a question which we have paraphrased as follows:

            May cities of the third class use revenue from parking meters as a base for redemption of bonds issued to acquire moneys to finance general flood control improvements?

            We answer this question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Before this question can be answered it is necessary that certain determinations be made concerning the power of third class cities to engage in flood control programs, and finance them through the issuance of bonds.

            A municipality such as a third class city, being wholly a creature of the legislature, possesses only such powers as are conferred upon it by the legislature; that is, such powers as are granted in express words, or those necessarily or fairly implied in or incident to the powers expressly conferred, or those necessarily essential to the objects of the corporation as set forth by statute.  Othello v. Harder, 46 Wn. (2d) 747, 752, 284 P. (2d) 1099 (1955); 2 McQuillin, Municipal Corporations (3rd Ed.) § 10.09, p. 592.

            In determining whether the legislature has made a grant of power to a municipality, all doubts are to be resolved against the  [[Orig. Op. Page 2]] municipality.  Municipal powers are therefore to be strictly construed and, in case of reasonable doubt, the power should be denied.  Pacific Etc. Ass'n. v. Pierce County, 27 Wn. (2d) 347, 353, 178 P. (2d) 351 (1947).

            The powers of third class cities are set forth in Title 35 RCW. RCW 35.21.090 reads as follows:

            "Any city or town shall have power to provide for the protection of such city or town, or any part thereof, from overflow, and to establish, construct and maintain dikes, levees, embankments, or other structures and works, or to open, deepen, straighten or otherwise enlarge natural watercourses, waterways and other channels, including the acquisition or damaging of lands, rights-of-way, rights and property therefor, within or without the corporate limits of such city or town, and to manage, regulate and control the same."

            RCW 35.24.290 (8) reads in part that third class cities have the power:

            "To improve rivers and streams flowing through such city, or adjoining the same; to widen, straighten and deepen the channel thereof, and remove obstructions therefrom; to improve the waterfront of the city, and to construct and maintain embankments and other works to protect such city from overflow; . . ."

            From these two statutory provisions it is clear that third class cities are authorized to engage in activities designed to protect themselves from uncontrolled surface waters.

            To carry out these activities moneys may be acquired by municipalities in several ways, including the sale of general indebtedness bonds.  (See RCW 35.37.040, and RCW 35.37.050 and following.)

            In 1957 the legislature enacted legislation now codified as RCW 35.24.305, which reads:

            "All cities of the third class, regardless of their form of government, and all municipal corporations of the fourth class (towns), are hereby authorized to use parking meter revenue  [[Orig. Op. Page 3]] as a base for obtaining revenue bonds for use in improvement of streets, roads, alleys, and such other related public works."

            The ultimate question, then, is whether this section authorizes the use of parking meter revenues as a base for the redemption of bonds issued for the purpose of carrying out flood control activities.

            An affirmative answer to this question can be given, in our opinion, only if the contemplated flood control project is so directly related to the "improvement of streets, roads, alleys, and . . . other related public works" that the project itself could in fact be characterized as a street, road, alley, or other related public work.  In our opinion a flood control project as generally defined, that is, one which is developed to protect and preserve many and varied types of life and property from uncontrolled flood waters, cannot be characterized as a street, road, or alley improvement.  (See generally Title 86 RCW.)

            Nor do we believe that a general flood control project, such as you have described, can be included within the meaning of the phrase "such other related public works."  Following the rules of statutory interpretation that where general words follow specific words in an enumeration describing the legal subject, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words, 2 Sutherland Statutory Construction (3rd Ed.) § 4909, p. 395; State v. Thompson, 38 Wn. (2d) 774, 777, 232 P. (2d) 87 (1951), and that words and phrases of a statute are to be construed according to their plain and ordinary meaning as commonly used and understood, State v. Houck, 32 Wn. (2d) 681, 685, 203 P. (2d) 693 (1949);Electrical Products Cons. v. Smyser, 19 Wn. (2d) 509, 516, 143 P. (2d) 452 (1943); 50 Am. Jur., Statutes, § 238, p. 227, coupled with the aforementioned principle that municipal powers are to be strictly construed,Pacific Etc. Ass'n. v. Pierce County, supra, we are convinced that a flood control project is not the type of activity the legislature was referring to when it enacted the wording "such other related public works."

            Further, relying on the doctrine of expressio unius est exclusio alterius (the specific mention of one thing implies the exclusion of the other thing),State ex rel. Port of Seattle v. Department P. S., 1 Wn. (2d) 102, 112, 95 P. (2d) 1007 (1939); 2 Sutherland Statutory Construction (3rd Ed.) § 4915, p. 412, it is our opinion that RCW 35.24.305 restricts the use of parking meter revenues  [[Orig. Op. Page 4]] as a base for the redemption of revenue bonds to only those situations embraced within the meaning of the phrase "streets, roads, alleys, and such other related public works."

            Accordingly, we answer your question in the negative.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

CHARLES B. ROE, JR.
Assistant Attorney General