COUNTIES - RIVER IMPROVEMENT FUNDS - USE OF CUMULATIVE RESERVE - OBLIGATION OF FUNDS FOR FUTURE PROJECTS

COUNTIES - RIVER IMPROVEMENT FUNDS - USE OF CUMULATIVE RESERVE - OBLIGATION OF FUNDS FOR FUTURE PROJECTS.

(1) A cumulative reserve for specific river work in the future may not be retained out of the yearly river improvement fund levy.

(2) County commissioners may not obligate future river improvement funds for specific river work to be initiated several years in the future.

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                                                                October 17, 1960

Honorable Arnold R. Zempel
Prosecuting Attorney
Snohomish County
Everett, Washington                                                                                        Cite as:  AGO 59-60 No. 153

Dear Sir:

            By letter previously acknowledged, you requested an opinion of this office on the following questions:

            (1) Can a cumulative reserve for specific river work in the future be retained out of the yearly river improvement fund levy?

            (2) May county commissioners obligate future river improvement funds, for specific river work, to be initiated several years in the future?

            We answer both questions in the negative.

                                                                     ANALYSIS

            The three statutes pertinent to the first problem are as follows:

            RCW 36.33.010:

            "Every county shall maintain a current expense fund to which shall be credited all taxes levied for that purpose and all fees collected, fines assessed, and forfeitures adjudged in the county the proceeds of which have not been specifically allocated to any other purpose."  (Emphasis supplied.)

             [[Orig. Op. Page 2]]

            RCW 36.33.020 then provides for a cumulative reserve fund and reads as follows:

            "The board of county commissioners may establish a cumulative reserve fund for the construction of a particular building or improvement and annually budget and levy a tax therefor.  It may also accept gifts and make transfers from the current expense fund for that purpose."  (Emphasis supplied.)

            By RCW 86.12.010 the county commissioners are authorized to levy annually a tax on all county property

            ". . .for the purpose of creating a fund to be known as the 'river improvement fund'. . . not in excess of one mill. . . . The fund shall be expended solely for the purposes of this chapter and all obligations incurred hereunder shall be paid therefrom."  (Emphasis supplied.)

            You will note from these three statutes that the cumulative reserve fund is composed of funds reserved either as a result of an annual budget and levy of a tax for a particular purpose or from gifts or transfers from the current expense fund.  RCW 36.33.040 provides a method to transfer cumulative reserve funds into other cumulative reserve funds or into the current expense fund under certain conditions, but does not provide for a transfer from a specific fund such as the river improvement fund into the cumulative fund.  Since the current expense fund cannot contain proceeds from tax levies already allocated to another purpose, the river improvement fund is not a part of the current expense fund.  Therefore the provision for a transfer from the current expense fund is not applicable.  There appears then to be no way to make a transfer from the "river improvement fund" into a cumulative reserve fund.

            We call your attention to the last sentence of RCW 86.12.010 which requires that all obligations incurred under that chapter by the county be paid from the river improvement fund.  This statute was last re enacted [[reenacted]]in chapter 204, § 8 of the Laws of 1941.  RCW 36.33.020, providing for a cumulative reserve fund, was enacted in chapter 51, § 1 of the Laws of 1945.  A question might therefore be raised as to whether the 1945 law impliedly repealed the last sentence of the 1941 act.  In Abel v. Diking and Drainage District, 19 Wn. (2d) 356, 142 P. (2d) 1017 (1943), the court stated:

            "Repeals by implication are ordinarily not favored in law, and a later act will not operate to repeal an earlier act except in such instances 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  [[Orig. Op. Page 3]] 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. . . ."  (p. 363)

            In our opinion, the provision of RCW 36.33.020 does not come within the rule enunciated above when considered as an implied repeal of the last sentence of RCW 86.12.010.  It is clear that the two statutes may be read together and both given effect.  RCW 86.12.010 pertains only to river improvements whereas RCW 36.33.020 pertains to particular buildings and improvements.

            Thus, RCW 86.12.010 appears to be a special statute and RCW 36.33.020 a general statute when applied to this problem.

            1 Sutherland Statutory Construction, Repeals and Repealing Acts, § 2021, reads as follows:

            "The enactment of a general law broad enough in its scope and application to cover the field of operation of a special or local statute will generally not repeal a statute which limits its operation to a particular phase of the subject covered by the general law, or to a particular locality within the jurisdictional scope of the general statute.  An implied repeal or prior statutes will be restricted to statutes of the same general nature, since the legislature is presumed to have known of the existence of prior special or particular legislation, and to have contemplated only a general treatment of the subject matter by the general enactment.  Therefore, where the later general statute does not propose an irreconcilable conflict, the prior special statute will be construed as remaining in effect as a qualification of or exception to the general law."

            In answer to your second question we would like to direct your attention to AGO 29-30 p. 368, a copy of which is enclosed, where we held that the river improvement fund statute comes within the budget act and that obligations which may be incurred in any one year are limited to the annual appropriation for such fund.  The annual appropriation should of course be balanced by a tax levy within the limits as set forth in this title.  It is our opinion, for the reasons aforestated, that RCW 36.33.030 does not change or overrule that holding.  RCW 86.12.010 authorizes the board of county commissioners to ". . . levy annually a tax . . . in such amount as they deem necessary. . . ."  This statute by its very terms requires an annual exercise of discretion by the board.  As a general rule one board may not bind a future board in the exercise of such discretion, absent specific statutory authority.  State ex rel. Schlarb v. Smith, 19 Wn. (2d) 109, 141 P. (2d) 651 (1943).  See also King County v. United States Merchants' & Shippers Ins. Co., 150 Wash. 626, 274 Pac. 704 (1929).

             [[Orig. Op. Page 4]]

            Since the budget act does apply and the county commissioners must exercise their discretion each year in fixing the amount of the levy of the tax for river improvements, it follows that the present board of county commissioners cannot bind a future board to levy a tax for a river improvement to be made in the future.

            Nothing we have said above should be construed as passing upon the question of whether or not the county could finance this project through the use of long term bonds.

            We trust the foregoing will be of some help to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

R. TED BOTTIGER
Assistant Attorney General