RIGHT OF FIRST CLASS COUNTY TO ISSUE BONDS FOR CONSTRUCTION OF TOLL BRIDGE

RIGHT OF FIRST CLASS COUNTY TO ISSUE BONDS FOR CONSTRUCTION OF TOLL BRIDGE

A county of the first class has statutory authority to sell bonds and use the proceeds for the construction of a toll bridge to be operated by the county.

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                                                                November 7, 1951

Honorable John J. O'Connell
Prosecuting Attorney
Pierce County
Court House
Tacoma, Washington                                                                                                              Cite as:  AGO 51-53 No. 165

Dear Sir:

            Receipt is acknowledged of your letter of November 1, 1951, in which you request our opinion as to whether Pierce County can legally issue and sell revenue bonds to finance the construction of a toll bridge in Pierce County.

            It is our conclusion that Pierce County does have the right to issue revenue bonds to finance the construction of a toll bridge in Pierce County.

                                                                     ANALYSIS

            Chapter 192, Laws of 1937 (Rem. Rev. Stat. Vol. 7A, § 6584-11 to 6584-21) purports to amend four sections of chapter 18, Laws of Ex. Sess. 1933.  However, chapter 18, Laws of Ex. Sess. 1933, was expressly repealed by section 69, chapter 187, Laws of 1937.  The repealed chapter is one enacted to give counties express authority to construct, operate and finance toll bridges.  Chapter 192, Laws of 1937, set out in full four sections of chapter 18, Laws of Ex. Sess. 1933 in amended form.  It will be noted that at the same session the legislature first repealed chapter 18, Laws of Ex. Sess. 1933, and then undertook to amend it.  The repealing statute, chapter 187, Laws of 1937, was approved by the governor on March 17, 1937.  It contained an emergency clause making it effective on April 1, 1937.

             [[Orig. Op. Page 2]]

            Chapter 192, Laws of 1937, was also signed by the governor on March 17, 1937.  It did not carry an emergency clause.  It may be noted that chapter 187 passed both the Senate and the House after chapter 192 had passed those bodies, but chapter 192 was assigned a number subsequent to that of chapter 187 when it was filed in the office of the secretary of state.  The records do not indicate which measure was actually signed last by the governor.  The effective time when these acts were passed must be determined by the last action necessary for passage.  That is the governor's signature, since the governor's action is as much a part of the legislative process as is that of the Houses of the legislature.  State ex rel. Stiner v. Yelle, 174 Wash. 402, 25 P. (2d) 91; Shelton Hotel Company v. Bates, 4 Wn. (2d) 498, 104 P. (2d) 478.

            Our Supreme Court held in the case of In re Boyce, 25 Wash. 612, that fractions of days may not be permitted to determine questions of priorities concerning public acts such as legislative acts or public laws.  Therefore, we must conclude that chapters 187 and 192 were enacted at the same time.

            There is a rule that if inconsistent acts are passed at the same time, the one having an emergency clause will prevail.  Heilig v. City Council of Puyallup, 7 Wash. 29, 34 Pac. 164; King County v. Certain Lots, 153 Wash. 452, 279 Pac. 724.  However, that rule does not solve the problem in this case because the repeal of chapter 18, Laws of Ex. Sess. of 1933, by chapter 187, Laws of 1937, does not prove that the legislature intended to void the sections simultaneously passed in chapter 192, Laws of 1937.  The fundamental rule of all statutory construction is to ascertain and give effect to the intention of the legislature as expressed in the statute.  Featherstone v. Desert, 173 Wash. 264, 22 P. (2d) 1050; Layton v. Home Indemnity Company, 9 Wn. (2d) 25, 113 P. (2d) 538.  It will not be presumed that the legislature did a vain and useless thing.

            "The legislature * * * can scarcely be supposed to intend its own stultification."  State v. Asotin County, 79 Wash. 634, 140 Pac. 914, quoting Endlich, Interpretation of Statutes, § 264.

            Therefore, we must presume that when the legislature enacted chapter 192, Laws of 1937, it intended to do something.  Since it cannot be said that chapter 187 was passed subsequent to chapter 192, the repeal of chapter 18, Laws of Ex. Sess. of 1933, did not carry with it the repeal of the sections set out in chapter 192.

             [[Orig. Op. Page 3]]

            Where the legislature enacts a statute purporting to amend a repealed statute, our Supreme Court has held the reference to the repealed statute should be regarded as surplusage if the title to the amendatory act is sufficiently broad to permit the matter set out to be considered an independent enactment.  In the case ofWhitfield v. Davies, 78 Wash. 256, 138 Pac. 883, our Supreme Court said:

            "It is argued, however, that inasmuch as subd. 9 of the act of 1890 is in conflict with § 3 of the act of 1897, there was a repeal by implication; hence, that the former act could not be amended by reference to it, or by reference to its subject matter which was carried into the code.  There are two answers to this contention.  The first is that the title of the act of March 18 is broad enough to give the act validity without reference to the section of the code.  In such cases an erroneous reference to the former statute may be treated as surplusage, and the statute becomes in effect an independent act.  State ex rel. Wolf v. Parmenter, 50 Wash. 164, 96 Pac. 1047, 19 L.R.A. (N.S.) 707.  * * *"

            On this subject the text of Sutherland, Statutory Construction (Third Edition) § 1903, reads:

            "* * * If the legislature has expressed its purpose intelligibly in the amendatory act and provided fully upon the subject considered, the majority of courts hold that it is a reasonable conclusion that the legislature did not intend to make the enforcement of the statute contingent on the continued existence of the repealed statute.  The reference to the repealed statute is dismissed as surplusage and the will of the legislature as embodied in the provisions of the attempted amendment are enforced as an independent act.  * * *"

            The title to chapter 192, Laws of 1937, reads:

            "AN ACT granting the board of county commissioners of first class and class A counties of the State of Washington the power to construct, improve, operate  [[Orig. Op. Page 4]] and maintain bridges on any public road within their respective counties over any navigable or other stream or body of water, the issuance of bonds payable solely out of the revenues of such bridges; the fixation and collection of tolls and charges to be used for the payment of such bonds and the cost of operation of such bridges; the execution of contracts or the taking of action necessary or desirable in connection with the construction, maintenance and operation of such bridges, the issuance and payment of such bonds:  Provided, That such bonds shall not be debts of the county or counties issuing such bonds; amending paragraph (a), section 1; also sections 4, 7 and 11 of chapter 18, Laws of Washington, Special Session 1933."

            The title is thus broad enough to sustain a statute giving authority to counties to erect toll bridges and finance them from bond issues.  This statute may then be considered an independent enactment containing specific authority to first class and class A counties to sell bonds to finance in whole or in part the construction of a bridge, which bonds shall be payable solely out of the revenues derived from the operation of the bridge.  The procedure by which the bridge shall be erected is not specified in this statute, but the statute does specify that the tolls shall be fixed in such amount as to cover the cost of operation and maintenance of the bridge and to pay the principal and interest on the bonds.  The manner for selling the bonds is also specified.  There appears to be a sufficient expression in the enactment to prevent the statute from failing for want of definiteness.  In our opinion, chapter 192 does constitute authority for class A and first class counties to sell revenue bonds for the purpose of constructing toll bridges within their limits.

            We note that in the case of Chandler v. Washington Toll Bridge Authority, 17 Wn. (2d) 591, 137 P. (2d) 97, our Supreme Court said that chapter 18, Laws of Ex. Sess. 1933, empowering counties to build toll bridges to be paid for by special bonds, was repealed.  We do not consider that to have been a holding  [[Orig. Op. Page 5]] that the repeal carried with it those sections contained in chapter 192, Laws of 1937, since that matter was not before the court and the court assumed, rather than decided, that a county had lost the power to construct a toll bridge by means of a bond issue.

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General