COUNTIES - GENERAL OBLIGATION BONDS - REDEMPTION BY ESTABLISHING TOLLS ON BRIDGE

COUNTIES - GENERAL OBLIGATION BONDS - REDEMPTION BY ESTABLISHING TOLLS ON BRIDGE.

The redemption of general obligation bonds issued by Whatcom county for construction of a bridge may not be accelerated by establishing tolls on the bridge during the peak traffic months.

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                                                                 October 4, 1960

Honorable Tom A. Durham
Prosecuting Attorney
Whatcom County
Court House, 311 Grand Avenue
Bellingham, Washington                                                                                 Cite as:  AGO 59-60 No. 149

Dear Sir:

            By letter previously acknowledged, you requested an opinion of this office on a question reading as follows:

            "May the redemption of General Obligation Bonds, issued by Whatcom County for construction of a bridge, be accelerated by establishing tolls on the bridge during the peak traffic months?"

            We answer your question in the negative.

                                                                     ANALYSIS

            Chapter 18, Laws of 1933, Ex. Sess., §§ 2 and 3 granted counties, without limitation as to class, express authority to operate toll bridges.  However, § 69, chapter 187, Laws of 1937, expressly repealed chapter 18, Laws of 1933, Ex. Sess. in its entirety.  Sections 26 through 29 of chapter 187 (cf. RCW 36.75.160 36.75.190) grant the county commissioners authority to erect or acquire bridges upon any county road which crosses a topographical formation which constitutes a county boundary in the sense that such formation joins with another county, city or town, of the state of Washington, or joins with any other state or any county, city or town of another state.  The last paragraph of § 29 provides:

            "Any such bridges . . . may be operated free, or may be operated as toll bridges . . . under the provisions of the laws of this state relating thereto."

             [[Orig. Op. Page 2]]

            Despite the fact that chapter 187 repealed the laws of this state relating to the authority of counties to operate toll bridges, the provision just quoted is the only one throughout the entire chapter that even makes mention of toll bridges.  Thus, even if we assume that the bridge which is the subject of your inquiry fits within the prescriptions of chapter 187, the authority to operate it as a toll bridge must still be determined "under the provisions of the laws of this state relating" to the operation of toll bridges.

            Insofar as our research discloses, chapter 173, Laws of 1937, and chapter 192, Laws of 1937, contain the only provisions relating to the operation of toll bridges.

            In chapter 173 (cf. chapter 47.56 RCW) the legislature created the Washington Toll Bridge Authority; granted it the power to provide for the establishment and construction of toll bridges upon any public highway and empowered it to issue revenue bonds for the construction thereof.  Authority to operate such toll bridges was vested in the state director of highways.  This chapter contains no provision which would authorize counties to establish, construct or operate a toll bridge.

            Chapter 192, Laws of 1937, pertains to the operation of toll bridges by counties.  The title thereto reads as follows:

            "An Act granting the board of county commissioners of first-class and class A counties of the State of Washington the power to construct, improve, operate and maintain bridges on any public road within their respective counties over any navigable or other stream or body of water, the issuance of bonds payable solely out of the revenues of such bridges; the fixation and collection of tolls and charges to be used for the payment of such bonds and the cost of operation of such bridges; the execution of contracts or the taking of action necessary or desirable in connection with the construction, maintenance and operation of such bridges, the issuance and payment of such bonds:  Provided, That such bonds shall not be debts of the county or counties issuing such bonds; amending paragraph (a), section 1; also sections 4, 7, and 11 of chapter 18, Laws of Washington, Special Session 1933."  (Emphasis supplied.)

            It is to be noted that chapter 192 purports to amend four sections of chapter 18, Laws of 1933, at a time when chapter 18 had already been repealed in its entirety by chapter 187, Laws of 1937.  In other words, the legislature amended in part that which seemingly no longer existed.

             [[Orig. Op. Page 3]]

            This office had occasion to pass upon this anomalous situation in 1951.  We held that the repeal of chapter 18 by chapter 187 did not carry with it those sections expressly amended by chapter 192, and that chapter 192 was a valid enactment.  (See, AGO 51-53 No. 165.)  However, the State Code Committee of 1941 (the predecessor to the present Statute Law Committee and not to be confused therewith) was of a different view.  That committee concluded that chapter 192 was a complete nullity as evidenced by the following notation from the Code Reviser's notes:

            "Chapter 192, Laws of 1937 purported to amend chapter 18, L. Ex. Sess. 1933, but this latter chapter was expressly repealed by ch. 187 L. 1937, sec. 69.  While it is not doubt possible to revive a repealed act by reenacting its various provisions in the form of amendments of individual sections, in this case the reenactment was abortive for the reason that chapter 192, Laws of 1937 amended only four scattered sections of the repealed act which consisted of 16 sections, thus giving us an incomplete and wholly meaningless result."

            As a result, the State Code Committee simply omitted chapter 192 from the published code so that it has no RCW counterpart.  Such action was strictly voluntary in that it was without legislative or judicial sanction.  Thus, chapter 192 must still be regarded as the law of this state.

            One of the most significant aspects in which chapter 192 amended the prior law (chapter 18) was to revoke the authority of counties, other than those of the first class or class A, to operate toll bridges.

            The title to chapter 192, quoted above, is an accurate synopsis of the provisions therein and makes it self evident that Whatcom county, not being a first-class or class A county, but rather, a county of the third class, has no authority to establish or operate a toll bridge and thus, may not redeem its general obligation bonds by imposing tolls on the bridge.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DUANE STOOKEY
Assistant Attorney General