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AGO 1951 No. 453 - February 19, 1951
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Smith Troy | 1941-1952 | Attorney General of Washington

DESCHUTES WAY APPROPRIATIONS.

Appropriation may lawfully be made from Capitol Building Construction Fund for paving parkways and spillways to DesChutes Way.

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                                                                February 19, 1951

Honorable Carlton Sears
State Senator
Legislative Building
Olympia, Washington                                                                                              Cite as:  AGO 49-51 No. 453

Dear Senator:

            You have made oral inquiry as to whether or not in my opinion the appropriations proposed to be made in sections 1 and 2 of Senate Bill 267, introduced and pending before the Thirty-second Legislature of Washington, are proper and lawful.

            The two sections of the bill are as follows:

            "Section 1. There is hereby re‑appropriated to the state capitol committee from the capitol building construction fund for the biennium ending March 31, 1953, the sum of two hundred thousand dollars for the use of said committee in carrying out the purposes of chapter 79.06 RCW, and in particular the purpose contemplated in the plan of Unit No. II adopted by it thereunder, the same being the unexpended balance of the appropriation contained in section 2, chapter 47, Laws of 1949, to be used for the construction of roads, fills, parkways and other improvements:  Provided, That no expenditure under the authority of this act shall exceed the unexpended balance of the appropriation contained in section 8, chapter 186, Laws of 1947.

             [[Orig. Op. Page 2]]

            "Sec. 2. There is hereby appropriated to the state capitol committee from the capitol building construction fund for the biennium ending March 31, 1953, an additional sum of six hundred thousand dollars to be used for the paving of the parkway from the dam and spillway to DesChutes Way in the city of Tumwater and the curbs, walks, parking strip lights and other appurtenances in connection therewith; the acquisition of right of way from Hays avenue to DesChutes Way in Tumwater and the completion of the parkway thereon, all as contemplated in the plan of Unit III adopted by the committee."

            You have asked specifically whether or not an appropriation may lawfully be made from the Capitol Building Construction Fund for purposes of paving the parkway from the dam and spillway to DesChutes Way in the city of Tumwater as provided in the above quoted section 2 of the bill.

                                                                     ANALYSIS

            Prior to 1911, the State Capitol Commission, established by statute, had general charge of the site for the proposed state capitol owned by the state in the city of Olympia, and of all matters in connection therewith.  Under section 1, chapter 20, Laws of 1909, extra session (Rem. Rev. Stat. 7905), the State Capitol Commission was given power to acquire by gift, donation, purchase or condemnation for capitol building purposes certain property adjoining the old capitol site, which many years before had been given to the Territory of Washington for its capitol buildings.  The land to be so acquired under said law was described as extending westerly to the bay or tidewater.

            Subsequently, the legislature enacted chapter 59, Laws of 1911 (Rem. Rev. Stat. 7906 et seq.), which provided in substance:

            "* * *for the erection and building thereon of a group or system of buildings for capitol purposes, and for beautifying, parking and laying out grounds about such capitol buildings * * *."  (Emphasis supplied.)

            In said act, the Capitol Commission was further directed to cause complete topographic and profile maps to be made of the lands composing capitol place, with such further details as to the grounds or buildings as the Capitol Commission might call for, so that "suitable, adequate and commodious buildings and grounds" might be provided for official purposes.

             [[Orig. Op. Page 3]]

            Pursuant to the aforesaid chapter 59, Laws of 1911 (Rem. Rev. Stat. 7906), the Capitol Commission received and considered a number of ground plans and accepted one plan prepared by a firm of New York architects.  The ground plan as so accepted and prepared is found in the reserve collection of Washington State Documents, Washington State Library, library designation being Wa725.1 st21wc2.

            Examination of the above mentioned document from the Washington State Library clearly indicates the arrangement of the capitol buildings as contemplated in the ground plan, also the park like improvement of the grounds, parkways running throughout the same, all abutting upon water with improved shorelands.

            The capitol group plan above referred to was before the Supreme Court of this state, inState ex rel. Wohleb v. Yelle, 196 Wash. 26, 81 P. (2d) 864.  This case, in substance, was an action brought by Mr. Wohleb to recover for architectural services consisting of the making of a preliminary survey and study to assist the Capitol Committee in fixing the site of an additional office building to be erected as an additional unit of the capitol group of buildings.  The State Auditor took the position in the case that Mr. Wohleb could not recover because the Capitol Committee had no lawful authority to locate the proposed new buildings on the site which it had selected.  The Supreme Court held in favor of the Auditor for the reason that the legislature in appropriating monies for the construction of the building had intended to follow the capitol group plan as it existed at the time of the passage of the appropriation act, the building to be placed upon the site indicated in the plans.  In other words, the court said that the legislature itself had fixed the location of the new building and therefore the Capitol Committee had no authority to direct the construction of the building on a site other than that fixed by the legislature.

            It is interesting to note the following statement made by the Supreme Court in theWohleb case regarding the capitol group plans:

            "The legislative direction that a unit be added to the capitol group indicates an adherence to the plans, and it does not appear that the capitol committee, prior to the legislative appropriation, had ever changed or suggested any change in the location of the remaining buildings which had not yet been constructed."  (Emphasis supplied.)

             [[Orig. Op. Page 4]]

            By chapter 186, Laws of 1947 (7921-10 et seq. Rem. Supp. 1947), the State Capitol Committee was authorized and directed, with the funds provided and appropriated in said act, to proceed with the completion of the DesChutes Basin project, the project being substantially set up by section 7 of said chapter, which section reads as follows:

            "Sec. 7. Proceeds of the bonds issued hereunder shall be expended by the State Capitol Committee in the completion of the DesChutes Basin project adjacent to the State Capitol grounds.  Such project shall embrace, (1) the acquisition by purchase or condemnation of necessary lands or easements; (2) the construction of a dam or weir along the line of Fifth Avenue in the City of Olympia and a parkway and railroad over the same; (3) the construction of a parkway on the west bank of the DesChutes basin from the Pacific Highway at the DesChutes River to a connection with the Olympic Highway; (4) the construction of a parkway from the vicinity of Ninth Avenue and Columbia Street in the City of Olympia around the south side of the north DesChutes basin, using the existing railroad causeway, to a road along Percival Creek and connecting with the Olympia Highway; (5) the preservation of the precipitous banks surrounding the basin by the acquisition of easements or other rights whereby the cutting of trees and the building of structures on the banks can be controlled; (6) the construction by dredging of varying level areas at the foot of the bluffs for access to water and to provide for boating and other recreational areas, and (7) such other undertakings as, in the judgment of the Committee, are necessary to the completion of the project.

            "In connection with the establishment of parkways, causeways, streets and highways, or the relocation thereof, and the rerouting of railroads to effectuate the general plan of the basin project, the committee shall at all times cooperate with the Department of Highways, the proper authorities of the City of Olympia, and the railroad companies which may be involved in the rerouting of railway lines."

             [[Orig. Op. Page 5]]

            After passage of the above mentioned chapter 186, Laws of 1947, and pursuant thereto, the Capitol Committee, according to its minutes, determined to expand the capitol grounds to include the DesChutes Basin project, involving the improvements specified in the act.

            In setting up the DesChutes Basin project as a part of the capitol grounds plans, the State Capitol Committee, according to its minutes, adopted in full the preliminary report on said project as furnished to said committee by James W. Carey & Associates, consulting engineers, such report being dated April 21, 1948.  It is to be noted that the report included specifically within the project the construction of a parkway on the west bank of the DesChutes Basin from the Pacific Highway at the DesChutes River to the west end of the dam.

            The map of the DesChutes Basin project showing location of proposed dam, parkways, existing and relocation of railroads by James W. Carey & Associates, consulting engineers, dated 1948, bearing No. DWG. No. 4801-01, as contained in the files and records of the Capitol Committee, together with the above mentioned preliminary report of said engineers, as adopted by the Capitol Committee, clearly indicate that the DesChutes Basin project includes the items of construction for which the proposed appropriations as contained in Senate Bill 267 are now to be made.

            After the passage of the initial act, chapter 186, Laws of 1947, the State Capitol Committee, because of limitation of funds, made available to it, was required to and did separate the project into units, all as reflected by the minutes of the Capitol Committee.

            Additional funds were made available to the Capitol Committee under chapter 47, Laws of 1949.  The 1949 appropriation included a sum of $400,000.00 to be used for the construction of roads, fills, parkways and other improvements as contemplated in Unit II as adopted by the Committee.

            Section 1 of Senate Bill 267 reappropriates monies for completion of Unit II and section 2 of said Senate Bill appropriates monies for the paving of the parkway from the dam and spillway to DesChutes Way in the city of Tumwater, and the construction of facilities in connection therewith, all as contemplated in the above mentioned plan adopted by the Committee and as authorized by the 1947 and 1949 legislatures of this state.

             [[Orig. Op. Page 6]]

            From a practical standpoint, it takes little, if any, argument to conclusively show that the construction of roads, fills, parkways and facilities in connection therewith, are a necessary and integral part of the capitol plan as it now exists.  They do have a direct bearing on the capitol buildings.

            In my opinion of February 15th to you concerning the construction of fishways in the DesChutes River, I discussed the trust theory under which capitol grant lands and monies derived therefrom are to be used, and therefore I will not here reiterate what I have stated in that opinion.  Suffice to say, that I believe the improvement of the capitol grounds and site of the capitol buildings by the construction of the dam, the making of an artificial lake, the expanding of the park and the construction of parkways therein to be entirely within the terms of the trust.

            I am not unmindful of the case of Hopkins v. Dept. of Labor & Industries, 190 Wash. 251, 67 P. (2d) 872, and other similar cases defining the word buildings as used in the strictest sense.

            Since 1909, the then State Capitol Commission, which later became the Capitol Committee, and the various legislatures of this state, up to the present time, have expanded the capitol building and grounds program.  This program, although not directly considered, has, by strong inference to say the least been recognized as lawful by the Supreme Court of this state, and I therefore advise you that in my opinion the appropriations contemplated by Senate Bill 267 are entirely lawful.

            I trust the foregoing will answer your inquiry.

Very truly yours,

SMITH TROY
Attorney General

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