Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1971 No. 82 -
Attorney General Slade Gorton

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                                                                   June 18, 1971
Honorable Walter C. Howe, Jr.
Office of Program Planning and
Fiscal Management
Insurance Building
Olympia, Washington 98501
                                                                                            Cite as:  AGLO 1971 No. 82 (not official)
Dear Sir:
            By letter previously acknowledged you have requested the opinion of this office regarding the constitutionally permissible use of a certain $50,000 appropriation made by the legislature at its 1971 session.  The appropriation consists of the following proviso in the appropriation for the Eastern Washington State Historical Society:
            "PROVIDED, That $50,000 of this appropriation shall be allocated to the Pacific Northwest Indian Center in Spokane."
            The information we have received from your office through conversations and in your letter indicates that the Pacific Northwest Indian Center is a nonprofit corporation formed in 1965 for a purpose described in one of its recent bulletins as follows:
            ". . . It's purpose is to be a repository for information on Indian cultures, a living museum and library facility, an active art center and a vital force for educational programs designed to develop Indian leadership."
            Initially, we must conclude that whatever the proviso means, it cannot be regarded as a legislative grant or gift to the Pacific Northwest Indian Center; nor the imposition of any duty upon any agency to make such a gift or grant, for that would be a direct violation of Article VIII, § 5 of the Washington constitution.  See, Hwy. Com. v. Pac. NW Bell Tel. Co., 59 Wn.2d 216, 367 P.2d 605 (1961); Johns v. Wadsworth, 80 Wash. 352, 141 Pac. 892 (1914).
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            Therefore, to the extent that the proviso is subject to construction at all, it is incumbent upon us to construe it in such a way as to be effective and constitutional at the same time.  Soundview Pulp Co. v. Taylor, 21 Wn.2d 261, 150 P.2d 839 (1944).
            With that principle in mind, we must conclude that the legislature, in enacting the proviso in question, merely intended to provide the necessary funding, up to a $50,000 limit, for any contractual relationship that Eastern Washington Historical Society might lawfully enter into with the Pacific Northwest Indian Center during the ensuing biennium.  Our reasoning is as follows.
            An appropriation, by definition, is simply a legislative act making certain funds available for expenditure.  It is not substantive legislation.  It imposes no duty upon anyone except, inferentially or expressly, the negative duty not to use the appropriation for some other purposes.  See, State ex rel. PUB. Co. v. Lindsley, 3 Wash. 125 (1891); Crane v. Frohmiller, 45 Ariz. 490, 45 P.2d 955 (1935); 42 Am.Jur., Public Funds, § 43.  Ordinarily an appropriation relates to or depends upon separate substantive legislation, providing the basic authority for which the appropriated funds may be spent.
            Here, such substantive authority may be found in chapter 27.32 RCW, making provision for the Eastern Washington Historical Society as a trustee of the state of Washington for certain purposes.  Among the duties of the society under RCW 27.32.010 are the following:
            "The Eastern Washington state historical society, a corporation existing under the laws of the state of Washington, be and the same is hereby created a trustee of the state of Washington for the intent and purposes hereinafter mentioned:
            "It shall be the duty of the said society
            "(1) To collect books, maps, charts, papers and materials illustrative of the history of this state, and of its progress and development.
            "(2) To procure from pioneers authentic narrative of their experiences and of incidents relating to the early settlement of this state.
            "(3) To gather data and information concerning the origin, history, language and customs of our Indian tribes.
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            "(4) To procure and purchase books, papers and pamphlets for the several departments of its collections, climatic, health and mortuary statistics, and such other books, maps, charts, papers and materials as will facilitate the investigation of the historical, scientific and literary subjects.
            "(5) To bind, shelf, store and safely keep the unbound books, documents, manuscripts, pamphlets and newspaper files now or hereafter to come into its possession.
            "(6) To catalogue the collections of said society for the convenient reference of persons having occasion to consult same.
            ". . ."  (Emphasis supplied.)
            It may be noted that none of these provisions nor any other statute that we have found affirmatively requires the Eastern Washington Historical Society to contract with the private nonprofit corporation in question for any purpose.  However, the legislature evidently contemplated that it might be necessary for the society, in the performance of one or more of its duties, to make appropriate contracts with the Pacific Northwest Indian Center for services or materials.  We can regard the $50,000 appropriation in question, therefore, as a provision setting aside that amount exclusively for the funding of such contracts, to be disbursed on the basis of properly executed vouchers for services rendered or materials furnished should the historical society enter into such contracts.
            We trust the foregoing will be of assistance to you.
Very truly yours,
Robert F. Hauth
Assistant Attorney General