OFFICES AND OFFICERS ‑- COUNTY ‑- COUNTY COMMISSIONERS ‑- AUTHORITY UNDER CHAPTER 209, LAWS OF 1961, TO CONTRIBUTE TOWARD APPROACH TO ASTORIA-MEGLER BRIDGE ‑- DEBT LIMITATION

OFFICES AND OFFICERS ‑- COUNTY ‑- COUNTY COMMISSIONERS ‑- AUTHORITY UNDER CHAPTER 209, LAWS OF 1961, TO CONTRIBUTE TOWARD APPROACH TO ASTORIA-MEGLER BRIDGE ‑- DEBT LIMITATION

The board of county commissioners of Pacific county is legally authorized to contribute toward the cost of construction of a Washington approach to the proposed Astoria-Megler bridge, within the debt limit requirements.

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                                                                   May 26, 1961

Honorable Herbert E. Wieland
Prosecuting Attorney
Pacific County
431 Second
Raymond, Washington

                                                                                                                Cite as:  AGO 61-62 No. 31

Dear Sir:

            By letter previously acknowledged we have received your inquiry which we paraphrase as follows:

            May Pacific county legally contribute $185,000 as provided by chapter 209, Laws of 1961, toward the cost of constructing the Washington approach to the proposed Astoria-Megler bridge, and if so, what debt limitations are applicable to such a county contribution?

            We answer your question as follows:

            Pacific county may legally make such contribution within the debt limit requirements hereinafter described.

                                                                     ANALYSIS

            Section 7, chapter 209, Laws of 1961, provides in part as follows:

            "The Washington state highway commission shall not enter into agreements with the Oregon state highway commission for the construction of the toll  [[Orig. Op. Page 2]] bridge over the lower Columbia river as authorized by section 3 unless and until:

            "(1) Pacific county has, at the request of the state highway commission, contributed or properly authorized the contribution of money or bonds in the sum of one hundred eighty-five thousand dollars or so much thereof as may be necessary to reimburse the Washington state highway commission for costs of design and construction of the approaches to said bridge within the boundaries of the state of Washington, such contribution to be made by any of the methods authorized in RCW 47.56.250; . . ."

            RCW 47.56.250 provides in part as follows:

            "Whenever a proposed toll bridge, toll road, toll tunnel or any other toll facility of any sort is to be constructed, any city, county or other political subdivision located in relation to such facility so as to benefit directly or indirectly thereby, may, either jointly or separately, at the request of the Washington state highway commission or the authority advance or contribute money, or bonds, rights of way, labor, materials, and other property toward the expense of building the toll facility, and for preliminary surveys and the preparation of plans and estimates of cost therefor and other preliminary expenses. . . ."

            County contributions to toll bridge construction were challenged as being in violation of the first proviso of the twenty-seventh amendment and Article VIII, § 7, of our state constitution, in the recent Evergreen Point bridge case,State ex rel. Washington Toll Bridge Authority v. Yelle, 156 Wash. Dec. 82 [[56 Wn.2d 86]].  With regard to this first proviso of the twenty-seventh amendment the court held at page 98:

            "The argument is made that the construction of a second toll bridge across Lake Washington is not a county purpose within the first proviso of the twenty-seventh amendment to the state constitution, which is as follows:

            "'Provided, That no part of the indebtedness allowed in this section shall be incurred for any purpose  [[Orig. Op. Page 3]] other than strictly county, city, town, school district, or other municipal purposes . . .'

            ". . .

            "The county purpose of a second toll bridge across Lake Washington is well within the limitations in our decided cases on this subject.  Grant v. Evans, 163 Wash. 484, 1 P. (2d) 852."

            With regard to the question of Article VIII, § 7, the court held:

            "The argument is made that there is a loan of the county's credit and that this is prohibited by Art. VIII, § 7 of the state constitution, which is as follows:

            "'No county, city, town or other municipal corporation, shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor or infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation.'

            "The prohibition contained in the quoted constitutional provision applies only to loans to private agencies and has no application to a loan of credit to a state agency.  Rands v. Clarke County, 79 Wash. 152, 139 Pac. 1090."  (page 99)

            In view of our court's holding in the case of State ex rel. Washington Toll Bridge Authority v. Yelle, supra, we conclude that Pacific county may legally contribute $185,000 as provided by chapter 209, Laws of 1961, toward the cost of constructing the Washington approach to the proposed Astoria-Megler bridge.

            The debt limitations of a county in connection with financing the Astoria-Megler bridge were discussed in a letter to the Honorable Julia Butler Hansen, chairman, joint fact-finding committee on highways, streets and bridges, under date of June 16, 1959. After quoting that portion of RCW 47.56.250 previously quoted in this opinion we stated:

             [[Orig. Op. Page 4]]

            "This statute further authorizes political subdivisions to issue general obligation bonds or levy excess tax levies for the purpose of making such contributions.  In this connection it must be pointed out that in general and for the purposes with which we are here concerned, political subdivisions may not incur total indebtedness exceeding five per cent of the last assessed valuation of the taxable property in such taxing district.  RCW 39.36.020.  Indebtedness exceeding one and one‑half per cent may be incurred only by vote of three‑fifths of the voters (RCW 39.36.020) at an election in which the total vote cast upon the proposition shall exceed fifty per cent of the total number of voters voting at the preceding general election.  RCW 39.40.010.

            "Although excess mill levies may be voted without limitation, such levies must be authorized by a three‑fifths vote at an election at which the total vote cast upon the proposition shall exceed forty per cent of the total number of votes cast at the preceding general election.  RCW 84.52.052.  Furthermore, such excess levy must be voted each year."

            Care should be taken to distinguish here between two distinct legal questions with which the above quoted paragraphs are concerned.  The first has to do with debt limitations, covered by certain statutes and by Article VIII, § 6, Amendment XXVII of the Washington State Constitution.  Except under certain circumstances not present here, the limit cannot exceed five per cent, even with a vote of the people.  The second of the quoted paragraphs above is concerned with tax levies in excess of the forty mill limit.  See Article VII, § 2, Amendment XVII, Washington State Constitution.  Neither this provision nor the statutes cited place a limitation upon the amount of any excess levy which may be authorized by a vote of the people.

            It is, of course, the case that if the indebtedness would not exceed one and one‑half per cent of the last assessed valuation the county commissioners could authorize the issuance of bonds without the necessity of a vote of the people.  Rust v. Kitsap County, 111 Wash. 170, 189 Pac. 994 (1920).

            We conclude, therefore, that Pacific county may legally contribute toward the cost of constructing the Washington approach to the proposed Astoria-Megler bridge.  So long as the one and one‑half  [[Orig. Op. Page 5]] per cent limitation is not exceeded the county commissioners may authorize the issuance of bonds without a vote of the people.  If the one and one‑half per cent limitation will be exceeded, a vote of the people will be necessary, as previously stated.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

STANTON P. SENDER
Assistant Attorney General