OFFICES AND OFFICERS - STATE - AERONAUTICS COMMISSION - APPROPRIATION TO CONSTRUCT TWO EMERGENCY LANDING FIELDS

OFFICES AND OFFICERS - STATE - AERONAUTICS COMMISSION - APPROPRIATION TO CONSTRUCT TWO EMERGENCY LANDING FIELDS.

1. Funds appropriated by chapter 13, Laws of 1959, Ex. Sess., for use by the Washington state aeronautics commission to construct two emergency landing fields may not be used for the purchase of as many existing private air strips as the money will allow.

2. The funds in question may be used for the purchase of two existing privately-owned air strips.

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                                                                October 10, 1960

Honorable William A. Gebenini
Director of Aeronautics
Box 3, Boeing Field
Seattle 8, Washington                                                                                          Cite as:  AGO 59-60 No. 151

Dear Sir:

            This is written in reply to your letter previously acknowledged in which you requested an opinion of this office on the questions which we paraphrase as follows:

            (1) May certain funds appropriated by chapter 13, Laws of 1959, Ex. Sess., for use by the Washington State Aeronautics Commission to "construct two emergency landing fields" be used for the purchase of existing privately-owned airstrips the number to be limited only by the total amount of money made available by the appropriation?

            (2) May the noted funds be used for the purchase of existing privately-owned airstrips not to exceed two in number?

            We answer the first question in the negative and the second in the affirmative.

                                                                     ANALYSIS

            At the outset, it should be noted that pursuant to Article VIII, § 4 (Amendment 11) of the Washington State Constitution,

            "No moneys shall ever be paid out of the treasury of the  [[Orig. Op. Page 2]] treasury of this state, or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment be made within one calendar month after the end of the next ensuing fiscal biennium, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and the object of which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum."  (Emphasis supplied.)

            Concerning the objects for which an appropriation may be expended, this office in a recent opinion to the Honorable Garrett Heyns, dated August 5, 1960 (AGO 59-60 No. 134) said:

            "It is, of course, well understood that an appropriation may only be expended in the manner provided for by the legislature.  In 42 Am. Jur. Public Funds, § 43, we find the following pertinent statement:

            "'In specific terms, an "appropriation" may be defined as an authority of the legislature, given at the proper time and in legal form to the proper officers, to apply a distinctly specified sum from a designated fund out of the treasury, in a given year, for a specified object or demand against the state."

            See also, State ex rel. Pub. Co. v. Lindsley, 3 Wash. 125, 127, 27 Pac. 1019 (1891).

            The full text of the pertinent portion of chapter 13, Laws of 1959, Ex. Sess., reads as follows:

            "That a capital budget is hereby adopted and subject to the provisions hereinafter set forth the several amounts hereinafter specified, or so much thereof as shall be sufficient to accomplish the purposes designated are hereby appropriated and authorized to be disbursed for capital projects during the fiscal biennium beginning July 1, 1959, and ending June 30, 1961, out of the several funds hereinafter named:

            ". . .

            "The following Capital Project:  Construct Two Emergency Landing Fields General Fund -State Building Construction !tp1Account Appropriation           $51,000"

             [[Orig. Op. Page 3]]

            It is our opinion that an expenditure of the funds in question for the purpose of purchasing from private owners of such number of existing private airstrips as may be had for the amount of money contained in this appropriation will not fulfill the specific purpose set forth by the legislature in the appropriation act noted, inasmuch as the act expressly states the number of airstrips that may be constructed by use of the funds appropriated; namely, "two".

            However, in our opinion there would be no objection to an expenditure of the funds in question for the purchase of existing privately-owned airstrips not to exceed two in number.  The word "construct" as used in the above quoted appropriation act appears to have been used in much the same sense as it was used by the legislature in Laws of 1889-90, p. 520, which was entitled: "An act authorizing cities and towns to construct internal improvements and to issue bonds and pay therefor, and declaring an emergency."  The quoted language was construed by the Washington supreme court in Seymour v. Tacoma, 6 Wash. 138 (1893).  The court held that the word "construct" was broad enough in the context in which used to encompass not only the actual building or making of internal improvements but also the purchase of necessary materials and land, observing that:

            ". . . Ordinarily, the meaning of the word 'construct' in the sense here meant would be to build or make; but to give the law any effect whatever, it must have been known to the legislature that more than the mere cost of construction involving the labor necessary would have to be implied.  In making every such improvement, the machinery and piping must be purchased, and they constitute a very large proportion of the cost.  But that is not all.  In building systems of water works especially two other things must be looked after, unless the cities for which they are provided lie immediately upon the lake or stream which furnishes the source of supply; these are the right to take water, and the necessary land for rights-of-way, reservoirs and buildings for machinery."  p. 147

            It is our opinion in the instant matter that it must have been known to the legislature that construction of emergency landing fields would in a like manner include not only the expenditure of labor but also the purchase of land, materials and equipment.  Therefore, we see no reason why the funds appropriated by chapter 13, Laws of 1959, Ex. Sess., for use by the Washington state aeronautics commission to "construct two emergency landing fields" may not be used to purchase not more than two existing privately-owned airstrips so long as no more is expended for this purpose than is reasonably necessary (1) to acquire the property; and (2) to construct such improvements as are needed to facilitate use as emergency landing fields of the airstrips purchased.

             [[Orig. Op. Page 4]]

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General