FINANCIAL PARTICIPATION IN PUBLIC WORKS PROJECTS OF STATE AGENCIES BY HIGHWAY COMMISSION. (RELOCATION OF VISITORS INFORMATION CENTER, PROJECT OF DIVISION OF PROGRESS AND INDUSTRY DEVELOPMENT

FINANCIAL PARTICIPATION IN PUBLIC WORKS PROJECTS OF STATE AGENCIES BY HIGHWAY COMMISSION.  (RELOCATION OF VISITORS INFORMATION CENTER, PROJECT OF DIVISION OF PROGRESS AND INDUSTRY DEVELOPMENT, ON PRIMARY STATE HIGHWAY RIGHT OF WAY). 

Highway Commission may legally expend Motor Vehicle Funds for relocation of Visitors Information Center on primary state highway right of way, to extent of anticipated benefit to highway, if Commission decides such benefit will accrue to highway from project.

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                                                                    May 1, 1953 

Washington State Highway Commission
Transportation Building
Olympia, Washington                                                                                                                Cite as:  AGO 53-55 No. 26

 Gentlemen:

             We have received your letter of April 21, 1953, setting out the following facts:  In connection with the relocation of Primary State Highway No. 1, it will be necessary to move the Visitors Information Center in Vancouver from the old right of way to a position on the new right of way.  The proposed site is acceptable both to the State Highway Department and to the Division of Progress and Industry Development, which operates the facility.

             You request an opinion on the following question:  Can the Highway Commission legally expend Motor Vehicle Funds for participation in the moving of the Information Center?

             Our conclusion may be stated in this way:  If the Highway Commission determines that Primary State Highway No. 1 will benefit by this project, it may expend Motor Vehicle Funds therefor to the extent of the anticipated benefit.

                                                                      ANALYSIS

             The applicable statute is RCW 47.08.070, which provides:

             "When in the opinion of the director it appears that a  [[Orig. Op. Page 2]] state highway will be benefited * * * by the construction of any public works project within the state by * * * anyagency * * * of * * * the state * * * he may enter into cooperative agreements with * * * any agency * * * wherein the state, acting throughits department of highways, will participate in the cost of the projectin such amount as determined by the director to be the value of the benefits to the particular state highway therefrom.  Under such an agreement the department of highways may contribute to the cost of the project by making direct payment to the particular * * * agency * * * involved in the project, from any funds appropriated to the department and available for highway purposes, or by doing a portion of the project either by day labor or by contract, or in any other manner as the director deems advisable and necessary."  (Italics supplied)

             By RCW 43.27.100 the Highway Commission is vested with the powers of the director, including those described above.

             The establishment and operation of the information center by a state agency, the Division of Progress and Industry Development, is authorized by RCW 43.21.180.

             Relocation of the information center involves both removal of the existing building to a new site and necessary excavation, grading and paving on that site.  We believe that this operation falls within a reasonable definition of "public works project," which normally includes construction or adaptation by a governmental agency for a public purpose.  Black's Law Dictionary (3rd ed.), 1856.

             fairly be described as "construction."  Transportation of the building and its establishment on the proposed site, achieving the same result as erection of a new structure on that site, may also be considered as "construction."  SeeBurke v. Brown, 30 S.W. 936 (Tex. Civ. App.)

             It follows that the proposed operation is the construction of a public works project within the state by a state agency, and to that extent is contemplated by the quoted statute.

              [[Orig. Op. Page 3]]

            Whether or not benefit will accrue to the highway is a question left to the sound discretion of the Highway Commission, as is determination of the amount of benefit.  If the Commission believes that the highway will benefit thereby, it is authorized to expend funds for the execution of such a project to the extent of the anticipated benefit.  The Commission may apply Motor Vehicle Funds, as appropriated to the department and available for highway purposes under section 15, chapter 280, Laws of 1953, to the project in the manner provided by the quoted statute.

             It should be noted that the quoted statute does not specifically require direct and immediate benefit to the particular highway involved.  We believe that a liberal construction of that statute would permit use of funds where the benefit might be indirect, although tangible.  If the information center would increase tourist travel in the state, and consequently gasoline excise revenue, the Highway Fund would receive direct benefit under Article II, section 40 of the Constitution.  Ultimately, benefit would also accrue to Primary State Highway No. 1.

             We conclude that, subject to determinations by the Highway Commission on the questions of benefit, the Commission may legally expend Motor Vehicle Funds for the removal of the information center.

 Very truly yours,
DON EASTVOLD
Attorney General 

A. J. HUTTON, JR.
Assistant Attorney General