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AGO 1955 No. 114 - July 13, 1955
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Don Eastvold | 1953-1956 | Attorney General of Washington


In the absence of an express appropriation, the Public Service Commission should not refund to any common or contract carrier who desires to take advantage of the alternative method of licensing under Sec. 9, Ch. 79, Laws of 1955, the 1955 fees paid under RCW 81.80.310 and 81.80.320 on trailers and semi-trailers [[semitrailers]].

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                                                                    July 13, 1955

Washington Public Service Commission
Insurance Building
Olympia, Washington                                                                                                              Cite as:  AGO 55-57 No. 114

Attention:  Mr. Joseph Starin, Commissioner


            You have requested our opinion on the following question:

            Should the Public Service Commission refund to any common or contract carrier, who desires to take advantage of the alternate method of licensing offered in the second paragraph of § 9, chapter 79, Laws of 1955, the 1955 fees which the carrier has paid under RCW 81.80.310 and 81.80.320 for his trailers and semi-trailers [[semitrailers]]?

            In our opinion, your question must be answered in the negative.


            The refunding procedure is established by § 9, chapter 79, Laws of 1955, providing in relevant part that:

             [[Orig. Op. Page 2]]

            "Any carrier who after the effective date of this act desires to avail himself of the alternative provided herein and who has acquired his plate and paid his fee for any piece of motor propelled equipment for the current year may convert to the alternative method provided herein by application to the commission who shall have power to issue the necessary plate therefor, accept such additional fee, make such refund or establish such credit as the case may be."

            The problem arising under the quoted section is whether or not money is available for payment of refunds.

            Article VIII, § 4 (Amendment 11) of the Constitution provides in part that:

            "No moneys shall ever be paid out of the 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; * * * and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and the object to which it is to be applied, * * *"

            While there is no doubt sufficient money in the Public Service Revolving Fund, we have been unable to discover an appropriation which would authorize the disbursement thereof in the form of refunds under § 9.  The question is therefore whether or not such an appropriation from the Public Service Revolving Fund would be necessary.

            If the Public Service Revolving Fund is a special or proprietary fund, technically outside the treasury, no appropriation would be required.  State ex rel. Washington Toll Bridge Authority v. Yelle, 195 Wash. 636;State ex rel. Sherman v. Pape, 103 Wash. 319;Ajax v. Gregory, 177 Wash. 465; State ex rel. State Retirement Board v. Yelle, 31 Wn. (2d) 87.

            If it is not such a fund, and is technically in the state treasury, appropriation would be necessary.  State ex rel. Shuff v. Clausen, 131 Wash. 119; State ex rel. Davis v. Clausen, 160 Wash. 618;Mason-Walsh-Atkinson-Kier Co. v. Department of Labor and Industries, 5 Wn. (2d) 508.

             [[Orig. Op. Page 3]]

            The nature of any given fund in this context depends upon affirmative legislative intent, as pointed out in State ex rel. State Retirement Board v. Yelle, supra, at p. 111 of 31 Wn. (2d):

            "Since, as hereinbefore determined, the legislature had the power to provide for the creation, collection, and administration of special funds for special purposes, without making them state or public funds, the situation resolves itself into the question whether the legislature, in passing the retirement systems act, intended to create a state fund subject to the constitutional restriction, or whether, on the contrary, it intended simply to set up aspecial, proprietary fund to be expended as directed by the legislature, without a specific appropriation."  (Emphasis by the court)

            In examining the various statutes which established and altered the Public Service Revolving Fund, we find that monies collected are to be paid to the state treasurer for its credit; there is no indication of a legislative intent to make it a special or proprietary fund.  See § 2, chapter 113, Laws of 1921; § 10, chapter 267, Laws of 1945; § 11, chapter 117, Laws of 1949 (RCW 43.53.090).  The same is true of the various sections in RCW chapter 81.80 requiring payment of fees, which generally provide (as does § 9, chapter 79, Laws of 1955,) that such fees "shall be deposited in the state treasury to the credit of the public service revolving fund."

            We conclude that the Public Service Revolving Fund is not a special or proprietary fund, and that expenditures and disbursements therefrom can be made only in pursuance of an appropriation under the 11th Amendment.

            Accordingly, we advise that the refunds provided for by § 9, chapter 79, Laws of 1955, should not be paid out by the commission until appropriation therefor has been made.

Very truly yours,

Attorney General

Assistant Attorney General

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