REDUCED OR ELIMINATED TRANSIT FARES FOR SENIOR CITIZENS, SCHOOL CHILDREN OR LOW INCOME OR HANDICAPPED INDIVIDUALS

COUNTIES ‑- TRANSPORTATION ‑- OLD AGE ‑- CHILDREN ‑- HANDICAPPED PERSONS ‑- REDUCED OR ELIMINATED TRANSIT FARES FOR SENIOR CITIZENS, SCHOOL CHILDREN OR LOW INCOME OR HANDICAPPED INDIVIDUALS 

(1) A county transportation authority organized under chapter 36.57 RCW may entirely eliminate fares for all transit users if the system it operates can be sustained from taxes or other available revenues.

(2) A county transportation authority may, likewise, reduce or eliminate fares for all classes of users during non-peak hours only, for the purpose of achieving a more balanced and economical operation.

 (3) Both because of a lack of statutory authority and possible constitutional objections under Washington Constitution, Article VIII, section 7, however, a county transportation authority may not, instead, directly reduce or eliminate fares only for (a) senior citizens, a category being created only on the basis of age, or (b) students attending public schools except (in the latter case) through an interlocal cooperation act agreement with participating school districts.

 (4) Likewise, although such action would not be constitutionally objectionable in the case of low income citizens or the handicapped, a county transportation authority presently lacks the requisite statutory authority to reduce or to entirely eliminate fares for those individuals. 

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                                                               December 31, 1980 

Honorable Curtis Janhunen
Prosecuting Attorney
Grays Harbor County
P.O. Box 550
Montesano, Washington 98563

Cite as:  AGO 1980 No. 25                                                                                                                

 Dear Sir:

            By letters previously acknowledged, you requested the opinion of this office on several questions regarding  [[Orig. Op. Page 2]] the legal ability of a county transportation authority either to reduce or to entirely eliminate fares for certain identified classes of transit users.  We paraphrase those questions as follows:

             (1) May a county transportation authority organized under chapter 36.57 RCW eliminate fares either entirely or on certain routes at certain times if the system can be sustained from taxes or other available revenues?

             (2) Assuming an affirmative answer to question (1), may such a county transportation authority instead reduce or eliminate fares only for:

            (a) Senior citizens, a category being created only on the basis of age; or

             (b) Students attending public schools; or

             (c) Low income citizens or the handicapped.

             We answer your first question in the affirmative as qualified in our analysis and respond to the several parts of your second question as set forth therein.

                                                                      ANALYSIS

             You have advised us that the Grays Harbor Transportation Authority was established several years ago in accordance with chapter 36.57 RCW.  Accord, RCW 36.57.020 which provides as follows:

            "Every county, except a county in which a metropolitan municipal corporation is performing the function of public transportation on May 5, 1974, is authorized to create a county transportation authority which shall perform the function of public transportation.  Such authority shall embrace all the territory within a single county and all cities and towns therein."

              [[Orig. Op. Page 3]]

            In addition, you have further indicated that the governing body of the Grays Harbor County Transportation Authority desires to initiate the subject rate changes primarily on the basis of its determination that:

            ". . . there is a considerable excess of seating capacity during non peak hours . . ."

             Bearing that determination in mind, we respond to your questions as follows:

             Question (1):

             Your first question, as above paraphrased, asks:

             May a county transportation authority organized under chapter 36.57 RCW eliminate fares either entirely or on certain routes at certain times if the system can be sustained from taxes or other available revenues?

             As a creature of statute, a county transportation authority may exercise only those powers which the legislature has granted to it, expressly or by necessary implication.  Accord,Pacific First Federal Savings and Loan Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947).  In this instance, the applicable statute is RCW 36.57.040 which reads, in material part, as follows:

             "Every county transportation authority created to perform the function of public transportation pursuant to RCW 36.57.020 shall have the following powers:

             "(1) To prepare, adopt, carry out, and amend a general comprehensive plan for public transportation service.

            "(2) To acquire by purchase, condemnation, gift or grant and to lease, construct, add to, improve, replace, repair, maintain, operate and regulate the use of any transportation facilities and properties, including terminal and parking facilities, together with all lands, rights of way, property, equipment and accessories necessary for such systems and facilities.

              [[Orig. Op. Page 4]]

"(3) To fix rates, tolls, fares and charges for the use of such facilities and to establish various routes and classes of service.

             ". . .

             "(5)(a) To contract with the United States or any agency thereof, any state or agency thereof, any metropolitan municipal corporation, any other county, city, special district, or governmental agency and any private person, firm or corporation for the purpose of receiving gifts or grants or securing loans or advances for preliminary planning and feasibility studies, or for the design, construction, operation, or maintenance of transportation facilities; and

             "(b) To contract with any governmental agency or with any private person, firm or corporation for the use by either contracting party of all or any part of the facilities, structures, lands, interests in lands, air rights over lands and rights of way of all kinds which are owned, leased or held by the other party and for the purpose of planning, constructing or operating any facility or performing any service related to transportation which the county is authorized to operate or perform, on such terms as may be agreed upon by the contracting parties:  PROVIDED, That before any contract for the lease or operation of any transportation facilities shall be let to any private person, firm or corporation, competitive bids shall first be called for and contracts awarded in accord with the procedures established in accord with RCW 36.32.240, 36.32.250, and 36.32.270.

             ". . ."

             (a)Total Elimination of All Fares:

             To the extent that your question contemplates a total elimination of all fares, we answer it in the affirmative.  Simply stated, the above quoted statute authorizes, but does not require, the fixing of ". . . tolls, fares and charges . . ."  In other words its wording is permissive and not  [[Orig. Op. Page 5]] mandatory.  In fact, from a reading of that statute along with others, it seems clear that fares are only one of several cumulative and alternative sources of revenue which the legislature has made available to a county transportation authority.

             In addition, subsection (5) of the same statute, supra, authorizes agreements with other agencies to receive ". . . gifts or grants . . ." made, expressly, for any of the various purposes for which fares could be charged.  Also to be noted is RCW 36.57.060 which directs the county itself, and any city or cities included within the boundaries of the transportation authority, to ". . . contribute such sums toward the expense for [sic] maintaining and operating the authority as shall be agreed upon between them."  And finally, expressly acknowledging the potential insufficiency of fares as a revenue source, we note that the legislature has enacted chapter 35.95 RCW, the first section of which (RCW 35.95.010) reads as follows:

             "We, the legislature find that an increasing number of municipally owned, or leased, and operated transportation systems in the urban areas of the state of Washington, as in the nation, are finding it impossible, from the revenues derived from tolls, tariffs and fares, to maintain the financial solvency of such systems, and as a result thereof such municipalities have been forced to subsidize such systems to the detriment of other essential public services.

             "All persons in a community benefit from a solvent and adequate public transportation system, either directly or indirectly, and the responsibility of financing the operation, maintenance, and capital needs of such systems is a community obligation and responsibility which should be shared by all.

             "We further find the declare that the maintenance and operation of an adequate public transportation system is an absolute necessity and is essential to the economic, industrial and cultural growth, development and prosperity of a municipality and of the state and nation, and to protect the health and welfare of the residents of such municipalities and the public in general.

                          [[Orig. Op. Page 6]]

"We further find and declare that the appropriation of general funds and levying and collection of taxes by such municipalities as authorized in the succeeding sections to this chapter is necessary, and any funds so derived and expended are for a public purpose for which public funds may properly be used."

             RCW 35.95.030 then authorizes the governing body of a county transportation authority to appropriate its general funds, without limitation, for the various operational and other needs of the system.  And, in turn, the remaining sections of the same chapter further authorize a county transportation authority, pursuant to voter approval, to levy and collect certain excise taxes for the same purpose.

             Nothing which we have found in these or any other statutes, in case law, or in any previous opinions of this office, indicates any legislative intent that all or any specific portion of the operating revenues of a county transportation authority must be derived from fares, tolls or other user charges.  We may only rationally conclude, therefore, that fares are simply one authorized funding source.

             It is thus our opinion, in response to the first part of your question, that a county transportation authority is not legally required to charge fares to its passengers or users in connection with the operation of the system.  Instead, such an authority may eliminate fares entirely if the system can be sustained from other available, legally authorized, revenues.

             (b)Elimination or Reduction of Fares on Certain Routes at Certain Times:

             It is our understanding that this aspect of your first question contemplates a fare schedule or plan which has as its primary objective the achievement of a more balanced and economical operation.  During peak hours, such as morning and evening rush hours, the operating equipment involved is taxed to its limits and even, perhaps, overtaxed.  In between those peak hours, on the other hand, the busses move along their prescribed routes almost empty at times.  But if the fares charged during those non-peak hours could be reduced or  [[Orig. Op. Page 7]] even eliminated, those with an option as to when travel‑-such as shoppers or recreational users rather than commuters going to and from work‑-would in turn logically elect to travel during those hours.  And, as a result, a more balanced overall use of the equipment would result with, presumably, attendant economies.

             Given thatrationale, supported by facts establishing both that purpose and that result, we believe that this approach would also be legally permissible.  And, coincidentially [coincidentally], the classes of passengers most likely to benefit from this kind of fare structure would be the elderly, the unemployed, and others described in your second question‑-who usually ride busses in those hours.  Under the provisions of RCW 36.57.040,supra, we believe that such a fare structure would be statutorily authorized.  And, because the direct primary beneficiaries (under the assumed facts) would be the authority and the public as a whole with only incidental benefit to those specific classes, the reduction of rates on such a uniform basis would be constitutionally permissible.  See, 42 Am.Jur., Public Funds, No. 57, page 758; State v. City of York, 164 Neb. 223, 82 N.W.2d 269 (1957);People v. Westchester County National Bank, 231 N.Y. 465, 132 N.E. 241 (1921).

             Question (2):

             Your second question assumes the foregoing answer to question (1),supra, and asks whether, instead, a county transportation authority may reduce or eliminate fares only for the following identified classes of transit users:

             (a) Senior citizens, a category being created only on the basis of age; or

(b) Students attending public schools; or

 (c) Low income citizens or the handicapped.

             Before addressing this inquiry in the context of the particular county transportation authority here involved, we should note, briefly, our awareness that certain other municipalities now already do provide such free or reduced rate utility services for certain classes of users only.  Regardless of our answer to your immediate question, however, this does not necessarily mean that all of those municipalities are  [[Orig. Op. Page 8]] operating illegally.  For example, in response to a request for information which we directed to one such municipality, METRO,1/ we have been told by its legal counsel that the practice there is mandated by federal law‑-as a condition for the receipt of federal funds‑-and is thus pursuant to authority granted by RCW 35.58.2794 which comes into play in such cases.  We would likewise have no difficulty in sustaining the validity of the rate differentialshere proposed, on either statutory or constitutional grounds, if they were predicated upon such conditions in a federal grant.  In any such case, presumably, the conditional grant would be a sufficient consideration for the loss of revenues on account of those rate differentials.  However, in answer to a question we posed to you earlier, you indicated to us that no such federal grant is involved in the instant situation relating to the Grays Harbor County Transportation Authority.  It is with that understanding that we now proceed to a consideration of each of the several special classes of transit users you have referred to, beginning with:

             (a)Senior Citizens:

             This part of your question asks whether the governing body of a county transportation authority may either reduce or eliminate fares for "senior citizens"‑-as a class‑-without regard to their income or economic status.

             If onlylow income senior citizens were involved, we would, quite readily, be able also to answer this question in the affirmative because of the following language of section 1, chapter 116, Laws of 1979, now codified as RCW 74.38.070:

            "(1) Notwithstanding any other provision of law, any county, city, town, municipal corporation, or quasi municipal corporation providing utility services may provide such services at reduced rates for low income senior citizens: PROVIDED, That, for the purposes of this section, 'low income senior citizen' shall be defined by appropriate ordinance or resolution adopted by the governing body of the county, city, town, municipal corporation, or quasi municipal corporation providing the utility services except as provided in subsection (2) of this section.  Any  [[Orig. Op. Page 9]] reduction in rates granted in whatever manner to low income senior citizens in one part of a service area shall be uniformly extended to low income senior citizens in all other parts of the service area.

             "(2) For purposes of implementing this section by any public utility district, 'low income senior citizen' means a person who is sixty-two years of age or older and whose total income, including that of his or her spouse or cotenant, does not exceed the amount specified in RCW 84.36.381(5)(b), as now or hereafter amended."

             Once both of the criteria referred to in the statute are present‑-i.e., low income and age‑-we believe that the provisions of RCW 74.38.070, supra, are sufficient to enable the establishment of special, reduced, transit fares for the individuals involved.  Although the term "utility services" is not defined in the statute, we have no doubt that it was visualized by the legislature as including public transportation.  See, Words and Phrases, "Public Utility;" also, Olsen v. City of New York, 29 N.Y.S.2d 426, 427 (1941).

             But what if, instead, the elderly, or "senior" citizens involved are not of low income (i.e., poor)?  First of all, given those circumstances, the constitutional validity under Wash. Const., Art. VIII, section 7 (quoted below at page 12) of the proposed program of reduced or eliminated transit fares would be difficult to sustain.  See our letter opinion dated March 20, 1975, to then State Senator Reuben Knoblauch; also AGO 1976 No. 20, copies of which are enclosed.  However, even aside from any such possible constitutional objection to either reducing or eliminating fares for non-indigent senior citizens, we must, on the basis of RCW 74.38.070, supra, note a lack of statutory authority.  Once again that statute, as above set forth, only purports to authorize reduced municipal utility rates or charges ". . . for low income senior citizens . . ."

           As evidenced by reported discussion on the floor of the Senate, the passage of this enabling legislation was apparently prompted by contemporaneous audit findings by the state auditor, following the above‑referenced opinions of this office, questioning the legality of rate discounts for senior citizens and others.  See, Senate Journal, 1979, at pp. 868-9 as follows:

                          [[Orig. Op. Page 10]]

"Senator Wilson:  'Senator Bottiger, to refresh my memory, are the provisions in this bill entirely optional with each individual utility?'

             "Senator Bottiger:  'Absolutely, Senator, this bill is the result of an auditor's report challenging the authority of several cities in the state; Seattle, Tacoma, Ellensburg, to offer a rate classification for senior citizens and this bill says they can, as they have been doing.'"

             Interestingly, while this discussion centered around "senior citizens" the bill as proposed and passed relates only to "low income senior citizens."  The significance of this 1979 legislation is thus inescapable.  The legislature has thereby placed its own construction on the powers of municipal agencies to grant preferential utility rates to senior citizens‑-and we are no longer free to speculate concerning the legislature's "intent" on that point.  State ex rel. Clausen, 63 Wash. 535, 116 Pac. 7 (1911).  Expressio unius est exclusio alterius‑-the expression of one is the exclusion of others not mentioned.  Knowles v. Holly, 82 Wn.2d 694, 513 P.2d 18 (1973).  Accordingly, in summary, we must answer this first part of your question in the negative.

             (b)Students Attending Public Schools:

             Next, we turn to the question of reduced or eliminated transit fares for students attending public schools.  We believe that this part of your second question must also be answered in the negative.

             The Grays Harbor Transportation Authority might, of course, enter into a contractual relationship with a local school district or districts whereby, in consideration for "free" transportation of their students along usual school bus routes to and from school, the district would reimburse the authority for its resulting costs.  Such a contract would be both constitutionally and statutorily valid.  From a constitutional standpoint no "gift" would be involved because of the resulting contractual consideration.  Moreover, in any event, the prohibitions of Article VIII, section 7, supra, simply do not apply to purely intergovernmental transactions.  See,e.g.,Rands v. Clarke County, 79 Wash. 152, 139 Pac. 1090 (1914) and, more recently,Anderson v. O'Brien, 84 Wn.2d 64, 524 P.2d 390 (1974).  And statutorily, such an  [[Orig. Op. Page 11]] agreement would be one which is authorized by both the Interlocal Cooperation Act (chapter 39.34 RCW), and by the instant county transportation authority enabling legislation itself.  Specifically, RCW 36.57.040(5)(b) authorizes a county transportation authority,

             "To contract with any governmental agency . . . for the purpose of planning, constructing or operating any facility or performing any service related to transportation which the county is authorized to operate or perform, on such terms as may be agreed upon by the contracting parties . . ."

             But again, as with the above‑noted absence of any pertinent federal grant conditions, in this case you have informed us that there is likewise no such contractual element present.  Moreover, as we understand it, the proposed student fare schedule would be applicable to all students enrolled in the public schools at all times and on all occasions‑-and not merely when they are actually going to or from school.

             For that reason, the constitutionality of such a category of rate reductions would again be doubtful.  But, as in the above‑discussed case of non-indigent senior citizens, that determination is likewise not here necessary.  Again, it is our opinion that RCW 74.38.070, supra, reflects a legislative determination to allow municipalities to establish such rate differentials only for "low income senior citizens" and for no other citizen classes.

             In so concluding we are aware of a possible contrary argument based on the fact that RCW 74.38.070,supra, was expressly added as a new section to chapter 74.38 RCW relating to "senior citizens."  Thus, it might be suggested that the legislature only meant to allow preferential utility rates as an added benefit to that class rather than to enumerate or restrict municipal powers per se.  However, the title of the measure itself reveals a broader intent as "An Act relating to utility rates . . ."  not "An Act relating to senior citizens."  (Cf., SB 2077, chapter 116, Laws of 1979).

             Consequently, in our opinion, a county transportation authority has no express or implied statutory power to eliminate or reduce fares for individual users simply because they are students of public schools.

                          [[Orig. Op. Page 12]]

            (c)Handicapped Persons and Persons With Low Incomes:

             These two classes of transit users both clearly represent constitutionally permissible categories of beneficiaries within the purview of Article VIII, section 7 of our state constitution which provides that:

             "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 and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation."  (Emphasis supplied)

             See,Washington Health Care Facilities Authority v. Ray, 93 Wn.2d 108, 605 P.2d 1260 (1980) in which our state Supreme Court squarely held, for the first time, that the "poor" (i.e., indigent) and the "infirm" (i.e., handicapped or disabled) are both independently within the purview of the above‑underscored constitutional exception to the general prohibition against gifts or loans or municipal credit or money.

             However, this segment of your question also presents the issue of statutory authority and thus must be answered, once again, in accordance with the above‑stated principle that municipal or other public officials and agencies such as a county transportation authority must find express or necessarily implied statutory authority for whatever they propose to do.  Pacific First Federal Savings and Loan Ass'n v. Pierce County, supra.  In view of the restrictive language of RCW 74.38.070, supra, we must therefore conclude that a county transportation authority does not now have statutory power to eliminate or reduce fares for transit system users simply because they are handicapped and/or indigent‑-even though, in this instance, legislation authorizing such action would clearly be constitutional.

                          [[Orig. Op. Page 13]]