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AGO 1958 No. 173 - March 14, 1958
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John J. O'Connell | 1957-1968 | Attorney General of Washington

PORT DISTRICTS ‑- REVENUE BONDS AND TIME WARRANTS ‑- DISTRICTS OF LESS THAN 400,000 POPULATION ‑- AUTHORITY TO PROVIDE FOR REDEMPTION OF REVENUE BONDS; SALE, NOTICE AND CALL FOR BIDS ON TIME WARRANTS; AUTHORITY TO PROVIDE FOR PAYMENT OF REVENUE BONDS OUT OF TAX REVENUE; AUTHORITY TO ISSUE TAX ANTICIPATION WARRANTS IN ADDITION TO REVENUE BONDS.

The provisions of chapter 53.40 RCW do not all apply alike to revenue bonds and time warrants of a port district.

Under the provisions of chapter 53.40 RCW all port districts may provide for the redemption of revenue bonds solely out of the revenue of a particular facility.

It is not necessary to advertise and call for bids on sale of port district time warrants.

Bonds and warrants issued under the provisions of chapter 53.40 RCW may not become a charge upon tax revenue, notwithstanding the use of the phrase "gross revenue" in RCW 53.40.040 (1957 Supp.).

Chapter 53.40 RCW (1957 Supp.) did not impliedly repeal all or any part of RCW 53.36.040, authorizing port districts to issue tax anticipation warrants.

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                                                                  March 14, 1958

Honorable R. DeWitt Jones
Prosecuting Attorney
Clark County
Vancouver, Washington                                                                                Cite as:  AGO 57-58 No. 173

Dear Sir:

            You have requested the opinion of this office upon several questions, which we paraphrase as follows:

             [[Orig. Op. Page 2]]

            (1) Do all of the provisions of chapter 53.40 RCW, as amended by chapter 59, Laws of 1957, apply alike to revenue bonds and time warrants of a port district, in view of the fact that several sections thereof only mention "revenue bonds" or "bonds?"

            (2) May a port district with a population of less than 400,000 issue revenue bonds for the construction of a facility and provide that these bonds shall be redeemed by the revenue received as rentals under a lease of the facility?

            (3) Is it necessary to publish a notice of sale and call for bids for time warrants?

            (4) Does the term "gross revenue of the port district" as used in § 5, chapter 59, Laws of 1957 (RCW 53.40.040), include tax revenues?

            (5) Does chapter 59, Laws of 1957, bar a port district from issuing interest bearing warrants as authorized by RCW 53.36.040, assuming that the warrants to be issued would be within the limits of the budget of the district?

            The answer to your first question is in the negative; your second question is answered in the affirmative.  Your third, fourth, and fifth questions are answered in the negative.

                                                                     ANALYSIS

            Your first question is answered by the fact that some of the sections of the act refer to "bonds" and others refer to "bonds and warrants" or "bonds or warrants."  Words in a statute must be given their generally accepted meaning, in the absence of anything in the statute to the contrary.  Cochran v. Nelson, 26 Wn. (2d) 82.  The members of the legislature are presumed to know the meaning of the words they write into their enactments.  Union Oil Co. of California v. State, 2 Wn. (2d) 436.  A statute should be so construed, if possible, that no clause, sentence or word would be superfluous, void or insignificant.  Groves v. Meyers, 35 Wn. (2d) 403.

            Each of the terms "bond" and "warrant" has a definite significance in law.  See State v. Pasco Reclamation Co., 90 Wash. 606.  The distinctive features regarding payment of each may well cause the legislature to make distinct provisions for the one not applicable to the other, as it has apparently done in chapter 53.40 RCW, and again in chapter 59, Laws of 1957.  We think that the language  [[Orig. Op. Page 3]] of these statutes shows an intention on the part of the legislature to make certain provisions for "bonds" and certain provisions for "bonds and warrants."

            Regarding your second question, you point out that part of the problem arises from an apparent ambiguity in the first sentence of RCW 53.40.090, which you state was left unchanged by chapter 59, Laws of 1957:

            "Bonds issued under the provisions of this chapter that are applicable to port districts having a population of less than four hundred thousand shall be payable solely out of revenues received from the use of improvements acquired and/or constructed from the proceeds of the sale of such bonds. . . ."

            The rest of the difficulty, you point out, springs from an apparent intention on the part of the legislature in enacting chapter 59, Laws of 1957, to eliminate the distinction made in the prior act between port districts having a population in excess of 400,000 and those having a population of less than that number.

            Reference to § 8, chapter 59, Laws of 1957, shows that RCW 53.40.090 was deleted in that act.  (See also the 1957 Supplement to the Revised Code.)  Therefore the question must be solved by reference to § 5 of chapter 59, Laws of 1957 (RCW 53.40.040).  That section reads as follows:

            "Bonds or warrants issued under the provisions of this chapter shall be payable solely out of revenues of the port district.  Such bonds or warrants may be authorized by resolution adopted by the port commission, which resolution shall provide for the creation of a special fund or funds, in which event or events theport commission may obligate and bind the port district to set aside and pay a fixed proportion of the gross revenue of the port district.  Such fund or funds shall be drawn upon solely for the purpose of paying the principal and interest upon the bonds and warrants issued pursuant to this chapter.

            "The bonds and warrants shall be negotiable instruments under the law merchant, even though they shall be payable solely from such special fund or funds, but shall never be deemed a charge upon the tax revenue of the port district.  The bonds shall state upon their face that they are payable solely from such special fund or funds.  If the port commission fails to set aside and pay into such fund or funds the payments provided for in such resolution, the holder of any such bonds or warrants may bring suit to compel compliance with the provisions of the resolution."  (Emphasis supplied.)

             [[Orig. Op. Page 4]]

            Generally, the word "may" is permissive, and it is to be construed as "must" or "shall" only when public interests are concerned or when necessary to protect ade jure right.  SeeBuell v. Toppenish, 174 Wash. 79.  In that case, the court quoted with approval the following language from 2 Lewis' Sutherland on Statutory Construction (2d ed.), 1146:

            "'"The ordinary meaning of the language must be presumed to be intended, unless it would manifestly defeat the object of the provisions."  The words in a statute, "it shall be lawful," of themselves, merely make that legal and possible which there would otherwise be no right or authority to do.  Their natural meaning is permissive and enabling only.  But there may be circumstances which may couple the power with the duty to exercise it.  It lies upon those who call for the exercise of the power to show that there is an obligation to comply.  The lord chancellor said: "The words 'it shall be lawful' confer a faculty or power, and they do not of themselves do more than confer a faculty or power.  But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called on to do so . . ." '2 Lewis' Sutherland on Statutory Construction (2nd ed.), 1146."

            We find nothing in the provisions of RCW chapter 53.40 which would clearly evidence a legislative intent that the word "may" should be construed as "shall" or "must."  Rather a contrary intention is indicated.  In RCW 53.40.030 the legislature has delegated to the port commission the authority to prescribe the terms and conditions of the bonds, the only mandatory requirement being that they be payable from a special fund or funds, and solely from revenue.

            Thus, the bondholders have no legal right to require the payment of any fixed proportion of the port district's gross revenue, unless the same shall be provided for in the resolution authorizing the bonds or warrants in question.  The final paragraph of RCW 53.40.040, supra, merely provides a right to enforce the payments provided for in the resolution, not necessarily payments of a fixed proportion of gross revenue.

             [[Orig. Op. Page 5]]

            In summary, it is our opinion that RCW 53.40.040, by the use of the word "may," merely authorizes the port commission, in its discretion, to set aside a fixed proportion of the gross revenues of the district to pay the principal and interest upon bonds and warrants issued under the chapter in addition to other less definite payments which may be provided.

            In answer to your third question, our supreme court has held that unless expressly required by statute, a municipal corporation need not advertise for competitive bids in making public purchases or letting public contracts.  Reiter v. Chapman, 177 Wash. 392.  Our research discloses no statute requiring such bidding in this instance.

            The answer to your fourth question is gained from a reading of § 5, chapter 5, Laws of 1957, in its entirety.  In paragraph two the legislature provided that these bonds and warrants "shall never be deemed a charge upon the tax revenue of the port district."  If "gross revenue" as used in the first paragraph of that section, authorizing the port commission to "obligate and bind the port district to set aside and pay a fixed proportion of the gross revenue of the port district," is held to include "tax revenue," it would be in direct contradiction to the quoted special provision of the second paragraph.  In the case ofIn re North River Logging Co., 15 Wn. (2d) 204, 207, our supreme court applied the well-established rule of statutory construction that where a statute expresses first a general intent and afterwards an inconsistent particular intent, the latter is an exception to the former and both will stand.  The application of that rule in the present instance results in a determination that "gross revenue" does not include "tax revenue."

            The answer to your final question depends upon whether or not RCW 53.36.040, authorizing tax revenue warrants, has been impliedly repealed by the subsequent enactment of chapter 53.40 RCW, as amended.

            Repeals by implication are ordinarily not favored in law, and a later act will not operate to repeal an earlier act except where the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede the prior legislation on the subject; or unless the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot by a fair and reasonable construction be reconciled and both given effect.  State ex rel. Reed v. Spanaway Water District, 38 Wn. (2d) 393.

            However, the subsequent enactment of a statute which treats a phase of the same general subject matter in a more minute way repeals pro tanto the provisions of the general statute with which it conflicts.  In such a case, the rules announced in the Spanaway case,supra, are not applicable.  In re Walder, 151 Wash. Dec. 83 [[51 Wn. 2d 99]].

             [[Orig. Op. Page 6]]

            RCW 53.36.040, it will be noted, treats of the general subject of borrowing and indebtedness, in anticipation of tax revenue, and provides for the issuing of tax anticipation warrants only, evidencing such indebtedness.

            Chapter 53.40 RCW, and specifically RCW 53.40.020, as amended, authorizes the issuance of revenue bonds and warrants for specified purposes, which parenthetically may or may not include all of the financial activities of the district.

            We find nothing in either act which would warrant a conclusion that the first has been impliedly repealed by the second, in toto or pro tanto.  It is apparent that each was enacted for a distinct purpose, the one to provide a means for anticipating tax revenue, and the other to provide a means for anticipating other revenue.  The provision of RCW 53.40.040, forbidding a charge upon tax revenue, expressly refers only to bonds and warrants issued under the provisions of that chapter, and which are to be issued upon certain specified terms and conditions.

            We conclude that nothing in chapter 53.40 RCW, as amended by chapter 59, Laws of 1957, prohibits a port district from issuing tax anticipation warrants as authorized by RCW 53.36.040.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General

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