OFFICERS ‑- LEGISLATURE ‑- EXPENSES ‑- MOTOR VEHICLE FUND

OFFICERS ‑- LEGISLATURE ‑- EXPENSES ‑- MOTOR VEHICLE FUND

Legislator, as member of statutory interstate committee on highway problems, may be reimbursed for expenses from motor vehicle fund.

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                                                                    June 6, 1955

Washington State Highway Commission
Transportation Building
Olympia, Washington                                                                                                                Cite as:  AGO 55-57 No. 91

Attention  !ttLorenz Goetz
            Secretary

Gentlemen:

            In your letter of May 18, 1955, you asked our opinion upon the following questions in regard to the authority of the Highway Commission to reimburse out of the Motor Vehicle Fund, Representative Howard T. Ball, Spokane, Washington, a member at large of the Western Interstate Committee on Highway Policy Problems for expenses incurred in attending certain meetings of the Committee and of the State Reciprocity Commission.  The questions were specifically as follows:

            1. (a) Is Representative Ball entitled to reimbursement for his traveling expenses incurred in attending meetings of the Western Interstate Committee on Highway Policy Problems?

            (b) If so, would such expenses be a proper charge against the appropriation set forth in section 48, chapter 383, Laws of 1955, and would the State Highway Commission be acting within its authority in certifying such expense vouchers for payment in the manner outlined herein?

            2. (a) Is Representative Ball entitled to reimbursement for his traveling expenses incurred in attending meetings of the State Reciprocity Commission?

             [[Orig. Op. Page 2]]

            (b) If so, would such expense be a proper charge against the appropriation set forth in section 48, chapter 383, Laws of 1955, and would the Highway Commission be acting within its authority in certifying such expense vouchers for payment in the manner outlined herein?

            Our conclusions are as follows:

            1. !tt(a) Yes
                        (b) Yes

            2.        (a) Yes
                        (b) Yes

                                                                     ANALYSIS

            The Joint Fact-Finding Committee on Highways, Streets and Bridges is authorized and directed under § 24, chapter 384, Laws of 1955, to continue its participation in the activities of the Western Interstate Committee on Highway Policy Problems.  One member at large is to be appointed by the State Highway Commission.  Representative Ball has been so appointed.

            The provision for the appointment by the State Highway Commission of the member at large to the Western Interstate Committee on Highway Policy Problems was made in § 4, chapter 254, Laws of 1953, and was continued by § 24, chapter 384, Laws of 1955.  Under § 5, chapter 381, Laws of 1955, it is provided that members of the Western Interstate Committee on Highway Policy Problems shall be advisory members of the State Reciprocity Commission and may attend meetings and conferences of the Commission in such capacity.

            The first inquiry is whether or not the Highway Commission may legally appoint a member of the legislature which enacted these laws to this committee in view of the prohibition of Article II, § 13, Constitution of the State of Washington, which provides as follows:

            "No member of the Legislature, during the term for which he is elected, shall be appointed or  [[Orig. Op. Page 3]] elected to any civil office in the State which shall have been created, * * * during the term for which he was elected."

            If a membership at large on the committee in question, is a "civil office" within the meaning of the constitutional provision, that provision would prevent the appointment of a member of the legislature which created the member at large position on the committee.

            We are enclosing a copy of our opinion to Governor Langlie, dated April 23, 1953 [[AGO 53-55 No. 16]], which holds that a member of the legislature appointed to the state welfare medical care committee by the Governor was not given a civil office within the meaning of the constitutional provision.  We believe that the opinion cited is clearly in point.  Because the members of the Western Interstate Committee on Highway Policy Problems are only to participate in the Committee's study of highway problems, etc., as outlined in § 24, chapter 384, Laws of 1955, and since the members appointed to the committee are "advisory" members of the Reciprocity Commission, § 5, chapter 381, Laws of 1955, the position of the member at large on this committee does not come within the definition of a civil office as outlined in the cited opinion; and therefore does not come within the prohibition of the constitution.  Also see 45 AGO 119 [[to William J. Pennock, State Representative on April 11, 1945]], and 46 AGO 527 [[to Belle Reeves, Secretary of State on January 4, 1946]].

            It should be noted that the Supreme Court in State ex rel. French v. Clausen, 107 Wash. 677, 182 Pac 610, held that a legislator appointed as a member of the Industrial Code Commission by the Governor was a civil office within the meaning of the constitutional prohibition, but it is our feeling that this determination has been clarified byState ex rel. Hamblen v. Yelle, 29 Wn. (2d) 68, p. 77, 185 P. (2d) 723, to the extent that a member at large appointed by the Highway Commission would not be such a civil office.  The reasons for this are completely covered in the enclosed opinion of April 23, 1953 [[AGO 53-55 No. 16]].

            The second inquiry is in regard to whether or not the member at large could be reimbursed for his expenses under the appropriation and whether or not the payment for these expenses could be legally appropriated from the motor vehicle fund.

            Section 24, chapter 384, Laws of 1955, provides as follows:

             [[Orig. Op. Page 4]]

            "In addition to the powers and duties heretofore conferred upon it, the committee is further authorized and directed to continue its participations in the activities of the 'Western Interstate Committee on Highway Policy Problems' of the eleven western states, of which the members for the state of Washington shall be two, one from the senate and one from the house of representatives, to be appointed by majority vote of the joint fact-finding committee on highways, streets and bridges and one member at large to be appointed by the state highway commission, in its study of highway problems upon a state and regional basis, and cooperate with and contribute to any study made by such committee of highway-user cost allocations in order to bring about equity and uniformity in this state and in the eleven western states in highway-user taxes and fees; participate in or make joint studies with relation to the design and construction of highways and the use and cost thereof; and participate in any interstate reciprocity or pro-ration [[proration]]meetings designated by the Washington reciprocity commission."

            It would appear from the reading of this statute that a member at large would have full authority to attend any meeting of the Western Interstate Committee on Highway Policy Problems.

            Funds for the use of the State Highway Commission and the Joint Fact-Finding Committee on Highways, Streets and Bridges were appropriated for the period beginning April 1, 1955, and ending June 30, 1957, under § 48, chapter 383, Laws of 1955. The statute reads specifically as follows:

            "There is hereby appropriated from the motor vehicle fund to the Washington state highway commission and the joint fact-finding committee on highways, streets and bridges for the  [[Orig. Op. Page 5]] period beginning April 1, 1955, and ending June 30, 1957, the sum of three hundred sixty-three thousand dollars ($363,000.00), or so much thereof as shall be necessary, to be used by the state highway commission and the joint fact-finding committee on highways, streets and bridges for the costs of special studies, tests and research relative to highway problems and for other necessary expenses authorized."

            We think that the activities of the Western Interstate Committee on Highway Policy Problems would qualify as "special studies, tests and research relative to highway problems" and that the expenses of Representative Ball as a member at large would be a proper charge against this appropriation.  The State Highway Commission would be acting within its authority in certifying Representative Ball's expense voucher for payment under this appropriation.

            As to the expenses incurred by Representative Ball in attending meetings of the State Reciprocity Commission, it will be noted that § 24, chapter 384, Laws of 1955, provides that the member appointed to the Western Interstate Committee on Highway Policy Problems may participate in any Interstate Reciprocity or Pro-Ration [[Proration]]meetings designated by the State Reciprocity Commission.  Furthermore, § 5, chapter 381, Laws of 1955, provides in relevant part as follows:

            "* * * Members of the western interstate highway policy committee from the state of Washington shall be advisory members of the reciprocity commission, and may attend meetings and conferences of the commission in such capacity, but shall not vote as members thereof."

            In conclusion it would appear that as a member of the Western Interstate Committee on Highway Policy Problems, the member at large may participate in any interstate reciprocity or pro-ration [[proration]]meetings and may attend the meetings and conferences of the State Reciprocity Commission of the State of Washington; and that the expenses of said member at large would be a proper charge against the appropriation of § 48, chapter 383, Laws of 1955, for the same reason that his expenses as a member at large of the Western Interstate Committee on Highway Policy Problems are a proper charge against the appropriation.

             [[Orig. Op. Page 6]]

            The question then arises as to whether the cost of special studies, tests and research relative to highway problems under § 48, chapter 383, Laws of 1955, would be a proper appropriation from the Motor Vehicle Fund.  Amendment 18, Article II, § 40 of the Constitution of the State of Washington 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;

             [[Orig. Op. Page 7]]

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

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

            "Provided, That this section shall not be construed to include revenue from general of 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.  [1943 p. 938, House Joint Resolution No. 4.  Approved November, 1944]"

            Amendment 18 has been construed by the Supreme Court in State ex rel. Bugge v. Martin, 38 Wn. (2d) 834, 232 P. (2d) 833, wherein the court held that the subdivisions (a) and (e) were deemed an expansion of the phrase "highway purposes" and that the words "highway purposes" would not be limited to the various items embodied in subdivisions.  It would, therefore, appear that the costs of research, special studies and tests relative to highway problems would be a legitimate highway purpose so that motor vehicle funds could be appropriated for these items.

            We trust that the foregoing analysis will be helpful to you.

Very truly yours,

DON EASTVOLD
Attorney General

NEWELL SMITH
Assistant Attorney General