FUNDS ‑- STATE ‑- MOTOR VEHICLE ‑- HIGHWAY SAFETY ‑- STATE PATROL RETIREMENT ‑- APPROPRIATIONS.

FUNDS ‑- STATE ‑- MOTOR VEHICLE ‑- HIGHWAY SAFETY ‑- STATE PATROL RETIREMENT ‑- APPROPRIATIONS.

 1. Highway Safety Fund can be consolidated with Motor Vehicle Fund.

 2. Appropriation for State Patrol Retirement Fund could be made from Motor Vehicle Fund after such consolidation.

                                                                    - - - - - - - - - - - - -

                                                                 February 21, 1955

Honorable Paul W. Ellis
Legislative Auditor
Senate Chamber
Legislative Building
Olympia, Washington                                                                                                                Cite as:  AGO 55-57 No. 26

 Dear Sir:

             You have requested the opinion of this office upon two questions which may be stated as follows:

             1. Can the Highway Safety Fund be consolidated with the Motor Vehicle Fund in view of the 18th Amendment?

             2. If so, could appropriations for the State Patrol Retirement Fund be made from the Motor Vehicle Fund after consolidation?

                                                                      ANALYSIS

             1. Article II, § 40 of the Constitution (the 18th Amendment) provides in relevant part that

             "All fees collected by the State of Washington as license fees for motor vehicles and all excise taxes collected by the State of Washington on the sale, distribution or use of motor vehicle  [[Orig. Op. Page 2]] fuel and all other state revenue intended to be used for highway purposes, shall be paid into the state treasury and placed in a special fund to be used exclusively for highway purposes.  * * *

             "Provided, That this section shall not be construed to include revenue from general or special taxes or excises not levied primarily for highway purposes, orapply to vehicle operator's license fees or any excise tax imposed on motor vehicles or the use thereof in lieu of a property tax thereon, or fees for certificates of ownership of motor vehicles."  (Emphasis supplied)

             The section requires that two specific kinds of revenue and all other revenue intended for highway purposes be placed in the Motor Vehicle Fund.  It looks to the consolidation of all revenues for highway purposes in one fund, and limits expenditures therefrom to those purposes.  It is couched in mandatory terms.

             The proviso can serve only to qualify the basic section.  The question here is whether it means the revenues it mentions cannot be treated in accordance with the basic section or that theyneed not be so treated.

             The Highway Safety Fund created by RCW 46.68.060 contains 25% of the fines and forfeitures collected for violations of the Motor Vehicle title (under RCW 46.68.050) and the Highways title (under RCW 47.08.030), and 60% of motor vehicle operator's license fees (under RCW 46.68.040).  The major part of the revenue from each source is used for highway purposes within the definition made by the 18th Amendment (the Highway Safety Fund and county and city roads and streets under RCW 46.68.050 and RCW 47.08.030).  A substantial part of the revenue from each of these sources is also allocated to state parks and parkways.

             Without the proviso, it is conceivable that the basic section of the Amendment might have been construed to mean thatall revenues from a source which was mainly devoted to highway purposes would have to be placed in the  [[Orig. Op. Page 3]] Motor Vehicle Fund.  That in turn would mean that parks and parkways could receive no share of the revenue from operator's license fees.

             It seems much more logical that the phrase "all other state revenue intended to be used for highway purposes" contained in the basic section was meant to give the legislature discretion (except as to revenues specifically mentioned therein) in designating such revenue, so that certain sources could be apportioned between highway and non-highway [[nonhighway]]purposes as has been done in the case of vehicle operator's license fees.  We think the language of the proviso is a recognition of the fact that such fees were and are used in major part for highway purposes and was included to permit that apportionment.

             If the proviso were construed to mean that no such fees could be treated in accordance with the basic section, the use of a part of those fees for highway purposes would require the maintenance of at least one additional fund for the same purposes, contrary to the general intent of the basic section.

             Thus the more reasonable interpretation of the proviso appears to be that the revenues mentioned therein need not be placed in the Motor Vehicle Fund.  The exclusion of these revenues from the mandatory provisions of the basic section, while permitting their expenditure for highway purposes from a different fund, does not mean that the legislature cannot, if it sees fit, place some part thereof in the Motor Vehicle Fund.  It follows that the Highway Safety Fund could be consolidated with the Motor Vehicle Fund.

             2. Your second question is whether, if such a consolidation were effected, appropriation could be made to the State Patrol Retirement Fund from the Motor Vehicle Fund.  The 18th Amendment provides that "highway purposes" shall be construed to include "policing by the state of public highways".  It seems obvious that the salaries of state patrolmen fall within the purview of that language.  It seems equally plain that the state's contributions to retirement benefits for patrolmen can constitutionally be made only upon the theory that they are in the nature of deferred compensation.  In other words, they are simply salary in another form.  SeeAyers v. Tacoma, 6 Wn. (2d) 545, and cases cited therein.  Accordingly, we conclude that the 18th Amendment would not prohibit such an appropriation.

              [[Orig. Op. Page 4]]

            We hope the foregoing analysis will prove to be of assistance to you.

 Very truly yours,
DON EASTVOLD
Attorney General 

A. J. HUTTON, JR.
Assistant Attorney General