USE OF MOTOR VEHICLE FUND BY PROPOSED DEPARTMENT OF TRANSPORTATION

HIGHWAYS ‑- FUNDS ‑- USE OF MOTOR VEHICLE FUND BY PROPOSED DEPARTMENT OF TRANSPORTATION

The state motor vehicle fund may be used to finance the operation of a proposed state department of transportation only to the extent that the activities and services of such a department would be related to highway purposes within the meaning of Article II, § 40 (Amendment 18) of the state constitution.

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                                                                  March 28, 1975

Honorable Jeff Douthwaite
State Representative, 43rd District
Legislative Building
Olympia, Washington 98504                                                                                                                                                 Cite as:  AGLO 1975 No. 35

Dear Sir:

            As indicated in your recent letter, Substitute House Bill No. 164 proposes to establish a state department of transportation.  The bill was passed by the house of representatives earlier this month and is currently pending before the state senate.  The new state agency which would be created if the bill becomes law would be governed by a 7-member transportation commission to be appointed by the governor, with the executive head of the department being a secretary of transportation to be appointed by the transportation commission.  See, §§ 4 and 5.  Functionally, the department of transportation would become responsible for the performance of:

            "(2) All powers, duties, and functions vested by law in the department of highways, the state highway commission, the director of highways, the Washington toll bridge authority, the aeronautics commission, the director of aeronautics, the canal commission, and the department of motor vehicles (except those powers, duties, and functions relating to gambling regulation and those now vested in the business and professional administration) . . ."

            According to a fiscal note attached to the bill, it is estimated that some 90% of the administrative costs of the department of transportation during the first year of its existence would be paid for by an appropriation from the state motor vehicle fund, and for this reason you have asked for our opinion on the following three questions:

            "1. Are the agency management and the transportation planning functions (as outlined in the fiscal note for SHB 164) 'highway purposes' for which motor vehicle funds may be spent under the 18th Amendment to the state constitution?

             [[Orig. Op. Page 2]] "2. If the answer to Question 1 is affirmative, must these motor vehicle funds be separated from the use of other funds in these two operations?  Or can motor vehicle funds be commingled with other funds with no records kept as to the use of 18th Amendment funds within the commingled fund?

            "3. If state motor vehicle funds are used to match Federal Highway Administration Highway Planning and Research funds, are the commingled funds limited to highway purposes under the 18th Amendment?"

            We respond to these questions in the manner set forth in our analysis.

                                                                     ANALYSIS

            Article II, § 40 (Amendment 18) of our state constitution provides, in material part, 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;

             [[Orig. Op. Page 3]] "(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;

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

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

            ". . ."

            The fund thus provided for has been denominated the state motor vehicle fund.  See, RCW 46.68.070.  Insofar as its use for the funding of any administrative expenses of state agencies is concerned, the Washington supreme court has held that the motor vehicle fund may, constitutionally, be used to pay administrative expensesrelated to highway purposes.  See,Highway Comm'n v. O'Brien, 83 Wn.2d 878, 523 P.2d 190 (1974), and State ex rel. O'Connell v. Slavin, 75 Wn.2d 554, 452 P.2d 943 (1969), both relying upon the express language of subsection (a) of this subject constitutional provision, supra.  From this it follows that those management services to be provided by the department of transportation which relate to highway purposes under Substitute House Bill No. 164 could be paid for from a motor vehicle fund appropriation.  Conversely, those management services which are not related to highway purposes would have to be funded in some other manner.  Apparently, those responsible for the preparation of the fiscal note to which you have referred in your letter have estimated that approximately 90% of the administrative services to be provided by the proposed department during the first year of its operationwill be related to highway purposes ‑ and this estimate would not appear unreasonable to us at this point in time.

            Your first question also inquires as to the ability to use moneys in the motor vehicle fund for transportation planning functions.  As you are no doubt aware, the legislature has by its prior enactment of RCW 47.04.083 expressly declared it to be:

            ". . . a highway purpose to use motor vehicle funds, . . . to pay the full proportionate highway, street or road share of the costs of design, right of way  [[Orig. Op. Page 4]] acquisition, construction and maintenance of any highway, street or road to be used jointly with an urban public transportation system."

            In addition to this legislative declaration, the state supreme court inHighway Comm'n v. O'Brien, supra, held that the objectives of efficient utilization of the highways and reduction of congestion and hazardous driving conditions are highway purposes within the meaning of Amendment 18, supra.  Therefore, it follows that those activities of the proposed department of transportation which would be related to transportation planning functions keyed to highways and their utilization would constitute activities properly to be paid for by expenditures from the motor vehicle fund.

            We turn, next, to your second question.  From the above description of SHB No. 164 it is readily apparent that the proposed department of transportation, if established, would be performing both highway and nonhighway functions.  Therefore, it will most certainly be necessary if the bill is enacted for some method of segregating its costs to be established so as to insure that motor vehicle funds are only used for departmental costs in conjunction with highway purposes.  We would, of course, assume that this will be done as it would obviously be improper for the financial resources of the department to be so commingled as to prevent an accurate audit of all aspects of its operation designed to insure, interalia, full compliance with the requirements of the 18th Amendment, supra.

            As far as your third question is concerned, under current law and practice those federal funds which are paid to the state for highway administration, planning and research are technically paid to reimburse the state for expenditures which it has already made.  Thus, the established pattern involves an initial expenditure of state funds whichmust be for "highway purposes" in order for it to be made from the motor vehicle fund in the first instance.  If, at sometime in the future, the federal government should change its method of financing any resulting restrictions upon the use of federal funds for nonhighway as opposed to highway purposes will be dependent upon the provisions of  [[Orig. Op. Page 5]] the then applicable federal law.

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

Very truly yours,

SLADE GORTON
Attorney General

EDWARD B. MACKIE
Deputy Attorney General