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AGO 1953 No. 487 - March 05, 1953
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Don Eastvold | 1953-1956 | Attorney General of Washington

COUNTIES ‑- POWER TO DECLARE EMERGENCY ‑- FLOODS ‑- ROAD MAINTENANCE ‑- TRANSFER OF MONEYS FROM ONE FUND TO ANOTHER. 

Road and flood control work, made necessary by flood, falls within the purview of RCW 36.40.180, which permits county commissioners by a unanimous vote to make any expenditures necessary to meet nondebatable emergencies.  Money may not be transferred from the current expense fund to the road fund or to the river improvement fund, to finance such emergencies.

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                                                                    March 5, 1953 

Honorable George N. Adams
State Representative
Twenty-fourth District
House of Representatives
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 487

 Dear Sir:

             We acknowledge receipt of your letter containing three inquiries relative to the authority of the Mason County Board of County Commissioners to declare an emergency and make expenditures for flood control work and county road work made necessary by flood.

             Our conclusions may be summarized as follows:

             Road and flood control work, made necessary by flood, falls within the purview of RCW 36.40.180, which permits county commissioners by a unanimous vote to make any expenditures necessary to meet nondebatable emergencies.  Money may not be transferred from the current expense fund to the road fund or to the river improvement fund to finance such emergencies.

                                                                      ANALYSIS

             RCW 36.40.180 provides, in part:

              [[Orig. Op. Page 2]]

            "Upon the happening of any emergency caused by * * * flood * * * the board of county commissioners may, upon the adoption by the unanimous vote of the commissioners present at any meeting the time and place of which all of such commissioners have had reasonable notice, of a resolution stating the facts constituting the emergency and entering the same upon their minutes, make the expenditures necessary to meet such emergency without further notice or hearing."

             The determination of what is an emergency caused by flood is discretionary with the commissioners.  The definition of "emergency" in 15 Cyc. 542, has been quoted with approval by the supreme court inState ex rel. Porter v. Superior Court, 145 Wash. 551. 261 Pac. 90.  That definition should be of assistance to the county commissioners in determining whether an emergency exists.  Their determination can be overthrown only by a showing of manifest abuse of discretion.

             If the county commissioners unanimously conclude that the flood has created an emergency such as contemplated by RCW 36.40.180, necessary expenditures are authorized to meet the emergency.  Although there is a limitation upon road fund expenditures in RCW 36.40.110, expenditures for emergencies of the kind specified in RCW 36.40.180 are expressly excepted from that limitation.

             RCW 36.40.190 provides the means for payment of emergency expenditures.  Emergency warrants are authorized to be paid from any moneys "in the fund properly chargeable therewith."

             The statute does not authorize transfers of moneys from one fund to another to pay emergency warrants.  Nor are we able to find a statute which does so authorize.  The statute specifies what is to be done if there are "insufficient moneys on hand in the treasury to pay any of such warrants."  Under this provision, unless there are sufficient moneys in the particular fund to pay such warrants, they must be registered, bear interest and be called in the manner prescribed by RCW 36.29.040-36.29.070.

             If there were a statute authorizing the transfer of moneys from one fund to another, it would, in our opinion, be unconstitutional.  Washington Constitution, Article VII, § 5 provides:

              [[Orig. Op. Page 3]]

            "No tax shall be levied except in pursuance of law; and every law imposing a tax shall state distinctly the object of the same to which only it shall be applied."  (Emphasis supplied)

             Under this provision, taxes levied for a particular object can be applied only to that object.  A transfer of moneys from one fund to another would violate this constitutional provision.

             Thus, unless the road fund and the river improvement fund are adequate to finance these warrants, the only way that they can be paid is by an excess levy authorized by a vote of the people in accordance with RCW 84.52.052.

             Under RCW 36.40.040, the annual budget must contain the total amount of emergency warrants issued during the preceding fiscal year, and must include in the annual tax levy, a levy sufficient to pay all of such warrants, unless the board elects to fund the warrants into bonds.  However, neither of these provisions will solve the problem if the county expenses for road work and flood control work continuously, from year to year, run higher than the limit of ten mills for the road fund, and one mill for the river improvement fund, authorized by RCW 84.52.050 and RCW 86.12.010 respectively.

             In light of this general discussion, your three questions are answered specifically as follows:

             (1) The board may, under RCW 36.40.180, declare an emergency and make necessary expenditures for flood control work to prevent a recurrence of river damage to county roads.

             (2) Money may not be transferred from the current expense fund to the road fund to finance work made necessary by a road washout.

             (3) Funds from emergency resolutions may not be transferred from the current expense fund to the river improvement fund to do work necessary to keep the river within its banks.

 Very truly yours,
DON EASTVOLD
Attorney General

WILLIAM C. HALLIN
Assistant Attorney General

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