Bob Ferguson
Other LanguagesAGLO 1972 No. 4 -
Attorney General Slade Gorton
- - - - - - - - - - - - -
January 18, 1972
Honorable Walter C. Howe, Jr.
Director, Office of Program
Planning and Fiscal Management
House Office Building
Olympia, Washington 98504 Cite as: AGLO 1972 No. 4 (not official)
Dear Sir:
By letter previously acknowledged you have requested the opinion of this office on three questions relating to the use of balances remaining from the proceeds of bonds issued pursuant to chapter 172, Laws of 1965, Ex. Sess. (Referendum No. 15) and chapter 148, Laws of 1967, Ex. Sess. (Referendum No. 19). Specifically, you have asked:
(1) May unexpended bond proceeds initially appropriated for a certain project designated in § 6 of each of these bond referendum acts now be reappropriated for another project listed in the same section of each measure without resubmission of the proposal to the voters?
(2) May such unexpended bond proceeds now be reappropriated for a project or projects not listed in the respective §§ 6 of each referendum without voter approval where the project(s) would nevertheless constitute "capital improvements" as defined in §§ 7 for agencies listed in §§ 1?
(3) May the legislature, without resubmission to the voters, reappropriate such balances to the bond redemption funds created by § 3 of each referendum for debt service purposes?
We answer your first and third questions in the affirmative and your second question in the negative.
ANALYSIS
Both chapter 172, Laws of 1965, Ex. Sess., and chapter 148, Laws of 1967, Ex. Sess., provided for the issuance of state general obligation bonds in amounts requiring voter approval under the following provisions [[Orig. Op. Page 2]] of Article VIII, § 3 of our state constitution:
". . . no debts shall hereafter be contracted by, or on behalf of this state, unless such debt shall be authorized by law for some single work or object to be distinctly specified therein, which law shall provide ways and means, exclusive of loans, for the payment of the interest on such debt as it falls due, and also to pay and discharge the principal of such debt within twenty years from the time of the contracting thereof. . . ." (Emphasis supplied.)
Designated, respectively, as Referendum Bills No. 15 and No. 19, each of these measures was accordingly submitted to and approved by the voters; the first at the 1966 state general election and the second at the 1968 election. The substance of each referendum, insofar as is material to your questions, is contained in certain sections thereof which are identically numbered and insofar as is material, similarly worded. We will answer your questions, therefore, as common to both referendums.
Section 1 of each referendum described the purpose of the act referred to as that of "providing needed capital improvements" for certain state agencies in the following manner:
Section 1, chapter 172 (Referendum No. 15):
"For the purpose of providing needed capital improvements for the institutions of higher education, the department of institutions, the department of natural resources and other state agencies, the state finance committee is hereby authorized to issue, at any time prior to January 1, 1970, general obligation bonds of the state of Washington in the sum of forty million five hundred seventy-five thousand dollars, or so much thereof as shall be required to finance the capital projects set forth in section 6 of this act, to be paid and discharged within twenty years of the date of issuance.
". . ."
[[Orig. Op. Page 3]]
Section 1, chapter 148 (Referendum No. 19):
"For the purpose of providing needed capital improvements for the department of general administration, the institutions of higher education and the department of institutions, the state finance committee is authorized to issue, at any time prior to January 1, 1972, general obligation bonds of the state of Washington in the sum of sixty-three million fifty-nine thousand dollars or so much thereof as shall be required to finance the capital projects set forth in section 6 of this act, to be paid and discharged within twenty years of the date of issuance.1/
". . ."
The term "capital improvements" was defined in § 7 of each referendum as follows:
"The words 'capital improvement' or 'capital project' used herein shall mean acquisition of sites, easements, rights of way or improvements thereon or appurtenances thereto, construction and initial equipment, reconstruction, demolition or major alteration of new or presently owned capital assets."
Section 2 of each measure directed the state treasurer to deposit the respective bond proceeds and certain other monies in the state building and higher education construction account created in the state general fund. Section 3 of each established a state building and higher education bond redemption fund in the state treasury, to be exclusively devoted to the payment of interest on and retirement of the authorized bonds. Finally (insofar as is material), § 6 of each referendum made specific appropriations for the capital projects listed therein, as follows:
[[Orig. Op. Page 4]]
Section 6, chapter 172 (Referendum No. 15):
"The following sums, or so much thereof as may be necessary, are appropriated from the state building and higher education construction account: Provided, That the legislature may reappropriate the unexpended balance from any project for other projects within the scope of section 1 of this act.
"For the Reformatory
Renovation of utilities. $342,000
Construct chapel. $137,500
"For the Women's Correction Center
Construct and equip, or remodel
and equip. $2,166,333
"For the Maple Lane School
Construct and equip two residential
units, demolish Spruce and Hawthorne
cottages. $350,000
"For the Group Homes
Construct and equip three group
homes. $276,600
"For the Fifth Youth Forestry Camp
Construct and equip. $668,631
"For the Western Hospital
Renovate utilities. $228,000
"For the Rainier School
Construct and equip laundry addition $273,013
"For the Yakima Valley School
Construct and equip three wings for
two-hundred seventy additional beds;
remodel and equip kitchen. $1,978,033 *
"For the Fircrest School
Construct and equip activities
building. $483,500
"For the University of Washington
Construct and equip college of
architecture building. $1,960,000
Construct and equip physics-atmospheric
science building. $2,275,000
Construct and equip art wing. $750,000
Renovate forestry building and construct
pulp and paper teaching
facility. $2,290,000
Construct and equip general classroom
building. $2,600,000
Construct graduate center facility $500,000
[[Orig. Op. Page 5]]
"For Washington State University
Construct Research and Laboratory
building‑-Puyallup. $1,334,782
"For Eastern Washington State College
New heating plant and extension of
utilities. $1,500,000
Construct and equip music building. $1,375,000
Construct and equip general classroom
building. $890,000
"For Central Washington State College
Construct and equip fine and applied
arts‑-language and literature
facility . $4,119,638
Land acquisition. $300,000
"For Western Washington State College
Construct and equip classroom‑-
faculty offices addition. $1,704,000
Construct and equip addition to
the library. $1,167,000
"For the Washington State Historical Society
Construct new wing to museum building:
Provided, That the sum appropriated herein
or so much thereof as is necessary shall
not be expended unless such sum is matched
in an equal amount from private contribution
and other sources collected on or
before January 1, 1969. $339,000
"For the Department of Natural Resources
Clearwater Honor Camp. $500,000
"For the University of Washington
Construct and equip health sciences
expansion. $9,600,000
"For the Finance Committee. $40,744 "
Section 6, chapter 148 (Referendum No. 19):
"The following sums, or so much thereof as may be necessary, are appropriated from the state building and higher education construction account: Provided, That the legislature may reappropriate the unexpended balance from any project for other projects within the scope of section 1 of this act.
[[Orig. Op. Page 6]]
"For the Department of General Administration
Construct and equip addition to state
library. $562,113 *
"For the Washington Correction Center
Construct and equip honor housing for
270 inmates. $1,875,630 *
"For the Maple Lane School
Construct and equip treatment security
unit. $264,970
"For the Spruce Canyon Youth Camp
Construct and equip vocational-gymnasium
building. $194,411 *
"For the School for the Blind
Construct and equip student residence
hall. $373,000
"For the School for the Deaf
Construct and equip field house. $150,000
"For the Rainier School
Construct and equip training and
service building $650,000
"Construct and Equip volunteer services
building $150,000
"For the Fircrest School
Replace Redwood Hall, Phase II $2,550,000
"For the University of Washington
Construct and equip law
school center $5,100,000
Construct and equip psychology
building $3,500,000
Construct and equip performing arts
building $3,700,000
Construct and equip computer center
addition $1,300,000
Construct and equip electrical engineering
addition $650,000
Enlarge plant services building $1,900,000
Expand and equip radiation therapy
and hospital clinic $2,050,000
"For Washington State University
Construct and equip agricultural
services building $3,934,775
Construct and equip physical
sciences building $3,148,630
"For Western Washington State College
Construct additional instruction
facilities $1,883,500
Construct and equip physical
education addition $490,000
Construct and equip administration
building $1,650,000
Renovation of Old Main $975,000
Complete construction and equipping
of education-psychology building $850,000
[[Orig. Op. Page 7]]
"For Central Washington State College
Construct and equip instructional
center $3,009,500
Construct and equip library
addition $2,070,000
"For Eastern Washington State College
Construct and equip health and
physical education building $1,125,000
Construct and equip classroom
building $1,500,000
Construct and equip radio-television
building $500,000
Construct and equip drama building $800,000
Construct and equip art building $1,090,000
"For the Fourth State College
Construction Phase I $15,000,000
"For the Finance Committee $62,471
By way of background for your three questions, you have indicated that several of the projects for which appropriations were made in each referendum, pursuant to voter authorization, were not completed although all of the authorized bonds were sold.2/ As a result, there now exist [[Orig. Op. Page 8]] corresponding unexpended balances of bond proceeds related to those projects for which the appropriations themselves lapsed at the close of the respective bienniums in which they were made. Each of your questions proposes a different use of these unexpended balances: (1) to fund other projects specifically listed in the respective §§ 6 of each measure; (2) to fund "capital improvements" for state agencies listed in the respective §§ 1 which are not among the projects listed in §§ 6; and (3) to redeem the subject bonds.
Because, in addition, each of your questions assumes the fact of no resubmission of any of these proposals to the voters, the ultimate issues to be resolved in this opinion turn upon a fundamental rule of law arising from judicial precedent; namely, that
". . . a measure approved by the voters cannot be changed by another public body; i.e., the measure can be changed by no less authority than that which called it into being. . . ."3/
[[Orig. Op. Page 9]]
Query: Would this rule be violated by any of the three proposals in question:
Questions (1) and (2):
Your first question is whether an unexpended balance for any one of the projects listed in § 6 of each measure may be reappropriated for another of the projects listed therein without a further vote of the people. We readily answer this question in the affirmative while at the same time answering your second question in the negative. Under this second proposal, the unexpended balances would not merely be reappropriated to others of the projects specifically listed in the respective §§ 6 of the two referendums but would, instead, be appropriated to fund the construction of other capital improvements for those state agencies referred to in §§ 1 of the two acts.
We reach these diverse results by interpretation of the identical reappropriation provisos appearing in these two §§ 6, which state:
". . . That the legislature may reappropriate the unexpended balance from any project for other projects within the scope of section 1 of this act."
In our judgment, these two provisos must be construed to authorize "transfers" of unexpended bond proceeds between projects designated in the sections in which they appear by reappropriations, but not between such projects and others not listed therein. Article VIII, § 3 of the constitution, as quoted above, requires (inter alia) that any law proposing the incurrence of a state debt which is covered by that section shall "distinctly specify therein . . . some single work or object." Undoubtedly, the only capital improvements which can be said to have been "distinctly specified" in either Referendum No. 15 or No. 19 are those which were expressly described in § 6 of each act, supra.
Moreover, both §§ 1, to which the reappropriation provisos in both §§ 6 refer, in turn refer directly back to the projects listed in §§ 6 only ‑ and not to any other projects. Repeated for ease of reference, the key language of each of these sections 1, which must be regarded as containing the legislature's specification of the object of the respective bond issues,4/ describes this object as being
[[Orig. Op. Page 10]]
". . . to finance the capital projects set forth in section 6 of this act, . . ."
Therefore, it must be concluded, in our opinion, that any unexpended proceeds of the two subject bond issues may, without resubmission to the voters, be reappropriated to other projects listed in § 6 of the particular law governing each issue. However, they may not be appropriated to any other projects without voter approval of a change in purpose regarding the use of these monies.
Questions (3):
Turning to your third question, it is here to be noted that the provisos in §§ 6 do not require the use of the unexpended balances for the projects listed. In fact, nothing in either referendum absolutely requires the use of any funds at all. In each case the matter is permissive; the voters merely authorized the creation of indebtedness and the expenditures of funds for certain purposes. The alternative to such use is not to use the funds at all, and in that case the law requires that they be returned in some manner to the people. See the informal opinion of this office to the prosecuting attorney of Whatcom county, October 16, 1959, and authorities cited therein. In that opinion we concluded that the unexpended balance in a bond redemption fund of a school district should be transferred to the general fund after redemption of the bonds; in other words, after the purpose of the fund had been totally exhausted. To authorize any of the funds in question to be transferred to the general fund under the facts of this case would undoubtedly constitute a diversion under Davis v. Seattle, supra, for the funds could then be used for unrelated state purposes while the authorized purposes of each chapter remained unfulfilled. However, if the balances were deposited in the bond redemption fund, they could be used solely for one of the purposes expressly contemplated by each chapter; namely, retirement of the bonded indebtedness. In that way the funds would revert to the people directly by reducing the amount of their general indebtedness. See the informal opinion of this office to the prosecuting attorney of King county dated April 23, 1965; and the previous opinion cited therein, AGO No. 2273 to the prosecuting attorney of Benton county, May 2, 1931 [[1931-32 OAG 94]]. Copies are enclosed. Accordingly, [[Orig. Op. Page 11]] we answer question (3) in the affirmative.
We trust the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
PHILIP H. AUSTIN
Deputy Attorney General
ROBERT F. HAUTH
Assistant Attorney General
*** FOOTNOTES ***
1/The one difference between § 1 of Referendum No. 15 and the corresponding section of Referendum No. 19 is that the latter listed all of the agencies for which the projects are intended; namely, ". . . the department of general administration, the institutions of higher education and the department of institutions . . ." The former (§ 1, Referendum No. 15) listed certain agencies and then referred to "other state agencies" in general terms. We do not, however, regard this difference to be of any significance for the purposes of your questions.
2/We have identified these projects by placing an asterisk after the line item appropriation for each item taken in each of the two §§ 6 above. By way of a more complete tabulation, we quote the following excerpt from your letter:
"According to our records, the balances from projects authorized by the Referendums are as follows:
Expended for
"Referendum No. 15 Authorized Planning,Design,Etc. Balance
"Yakima Valley School
Construct and equip
three wings for
two hundred
seventy additional
beds $1,978,033 $96,113 $1,881,920
Expended for
"Referendum No. 19
"Department of General
Administration
Construct and equip
addition to State Library
$562,113 $78,358 $483,755
"Washington Corrections
Center
Construct and equip
honor housing for
270 inmates $1,875,630 $90,103 $1,785,527
"Spruce Canyon
Construct and equip
vocational
gym bldg. $194,411 $17,000 $177,311"
3/See, Davis v. Seattle, 56 Wn.2d 785, 792, 355 P.2d 354 (1960), and cases cited therein; also, AGO 61-62 No. 59 [[to Prosecuting Attorney, Douglas County on August 30, 1961]], copy enclosed. Insofar as state bond referendum bills are concerned, this rule was not deemed inapplicable in either AGO 57-58 No. 175 [[to Department of Institutions on March 28, 1958]]or our informal opinion dated January 28, 1969, to the legislative budget committee (copies enclosed) wherein we concluded that the legislative voting requirements of Article II, § 41 (Amendment 26) were applicable to any amendments to a bond referendum within the first two years after voter approval. Instead, we simply viewed these latter requirements to exist in addition to that of resubmission to the voters where the proposed amendment would substantially alter the purposes and object of the original measure. See, AGO 57-58 No. 175 at page 3.
4/See, State ex rel. Troy v. Yelle, 38 Wn.2d 501, 230 P.2d 601 (1951).