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Bob Ferguson

AGO 1978 No. 15 -
Attorney General Slade Gorton


A county may expend monies in its county road fund to construct and maintain bicycle paths, including a bicycle path within city limits on city-owned property not necessarily in conjunction with an existing or new street or road, where the construction of such a path or paths, by reducing bicycle traffic on such streets or roads, will thereby increase motor vehicle safety.

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                                                                    May 9, 1978

Honorable Arthur R. Eggers
Prosecuting Attorney
Walla Walla County
402 Drumheller Building
Walla Walla, Washington 99362

                                                                                                                 Cite as:  AGO 1978 No. 15

Dear Sir:

            This is written in response to your recent request for our opinion on the following two questions:

            "1.  May a county spend funds in the county road fund . . . to construct and maintain a bicycle path within city limits on city owned property?

            "2.  Assuming your answer to (1) is negative, may the funds be expended under an agreement pursuant to RCW 35.77.020 and 35.77.030 as discussed in AGO 61-62 No. 159 [[to Arthur L. Hawman, Prosecuting Attorney of Walla Walla County, on September 4, 1962]]."

            We answer your first question in the affirmative as qualified in our analysis, thereby rendering consideration of your second question unnecessary.

             [[Orig. Op. Page 2]]


            Question (1):

            RCW 36.75.240 relates to the expenditure of county road funds for certain designated projects.  Insofar as your initial question is concerned, this statute was significantly amended by the legislature in 1974.  See, § 7, chapter 141, Laws of 1974, 1st Ex. Sess., here set forth in bill form for ease of comprehension:

            "The boards may expend funds credited to the county road fund from any county or road district tax levied for the construction of county roads for the construction of sidewalks, bicycle paths, lanes, routes, and roadways, and pedestrian allocated paths or walks((, or either, parallel and adjacent to any county road))."

            In our judgment this 1974 amendment accomplished two separate things:  First, it expressly added bicycle paths to the list of projects for which county road funds may lawfully be expended; and second, it removed the preexisting statutory requirement that the various items listed in the statute must either be parallel or adjacent to a county road.

            Section 7, chapter 141,supra, was part of a larger act relating, specifically, to bicycle routes.  Also to be noted is § 12, again set forth in bill form for ease of comprehension, which amended RCW 47.30.030 as follows:

            "Where an existing highway severs, or where the right of way of an existing highway accommodatesa trail for pedestrians, equestrians or bicyclists ((or would accommodate)), or where the separation of motor vehicle traffic from pedestrians, equestrians, or bicyclists will materially ((benefit))increase the motor vehicle safety ((of the traveling public by)) the provision ((within the right of way)) of facilities for pedestrians, equestrians, or bicyclists which are a part of a comprehensive trail plan adopted by federal, state, or local governmental authority having jurisdiction over the trail((,))is hereby authorized.   [[Orig. Op. Page 3]] The state highway commission, or the county or city having jurisdiction over the highway, road, or street, or facility is further authorized to spend [expend] reasonable amounts out of the funds made available to them, according to the provisions of RCW 46.68.100, as necessary for the planning, accommodation, establishment, and maintenance of such facilities."

            Here, the critical point to be noted is the legislature's expressly stated justification for the construction of bicycle paths; i.e., that their construction will increase motor vehicle safety by, presumably, removing bicycles from the streets and highways themselves.1/

             All of the foregoing is particularly pertinent to your question because of two further factual stipulations set forth  [[Orig. Op. Page 4]] in your letter.  Specifically, in describing the proposed bicycle path which is involved, you have advised us that:

            ". . .  The path would not be in conjunctive [sic] with an existing or new road, but it is anticipated that bicycle traffic on city streets would be reduced."

            Thus, in summary, what we here have proposed is this:  A bicycle path, to be paid for with county road funds, which will be constructed within an incorporated city or town which is situated in the county‑-and further, a bicycle path which, although it will not run parallel or adjacent to either an existing or new county road, will, nevertheless, reduce bicycle traffic on the city streets.  Given those facts and conditions we believe that an affirmative answer to your question may be given.

            First, there is no requirement in RCW 36.75.240, supra, as amended, that county road funds be expended only for the construction of bicycle paths situated in unincorporated portions of the county.  Second, there is likewise no longer any requirement that those bicycle paths, or any of the other items listed in RCW 36.75.240, supra, be constructed either parallel or adjacent to a county road.  And thirdly, the requisite justification, as spelled out in RCW 47.30.030,supra, here exists; namely, an anticipated increase in motor vehicle safety through a reduction in the number of bicycles attempting to utilize traveled streets or highways.

            Question (2):

            Having so answered your first question in the affirmative on the basis of the foregoing reasoning, we need not further consider your second question which, instead, assumes a negative answer to question (1).

            It is hoped that the foregoing will be of some assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/From a constitutional standpoint, such a justification is necessary in order to sustain the use of any state motor vehicle fuel tax revenues for the construction and maintenance of bicycle paths because of the requirement of Article II, § 40 (Amendment 18) of the state constitution that those revenues be used only for highway purposes.  For the purposes of this opinion it should also be noted that we do not here purport to pass upon the constitutionality of the various amendments contained in chapter 141, Laws of 1974, 1st Ex. Sess.,supra.  Instead, consistent with longstanding office policy, we must presume those amendments to be constitutional until and unless a contrary ruling is issued by a court of competent jurisdiction.  The basis for this consistent policy has been frequently set forth in our prior opinions, with perhaps the most succinct explanation appearing in AGO 1945-46 [[to John T. Welsh, Prosecuting Attorney of Pacific County, on July 17, 1945]], p. 269 as follows:

            ". . .  The power to declare an act constitutional or unconstitutional is vested solely in the courts.  Consequently, nothing can be gained by this office expressing an opinion as to the constitutionality of a statute.  A pronouncement of unconstitutionality would merely cause confusion and disorder among the administrative officers whose duty it is to give effect to the presumption of constitutionality which attaches to all laws until declared otherwise by a court of competent jurisdiction."