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Bob Ferguson

AGLO 1972 No. 59 -
Attorney General Slade Gorton

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                                                                  August 4, 1972
Legislative Transportation Committee
2nd Floor, House Office Building
Olympia, Washington 98504
                                                                                            Cite as:  AGLO 1972 No. 59 (not official)
Attention:  !ttHonorable F. Pat Wanamaker
            Chairman, Subcommittee on Programs/Budgets
            This is written in response to your letter dated June 12, 1972, requesting our opinion on the following two questions:
            "1. Does the 18th Amendment prohibit the deposit in the Motor Vehicle Fund of those revenues which by statute are currently deposited in the Highway Safety Fund created by RCW 46.68.060?
            "2. Do the uses of Highway Safety Fund Revenues identified in RCW 46.68.060 qualify as 'highway purposes' under the 18th Amendment?
            We answer question (1) in the negative and question (2) as set forth herein.
            The highway safety fund is provided for by RCW 46.68.060 as follows:
            "There is hereby created in the state treasury a fund to be known as the highway safety fund to the credit of which shall be deposited all moneys directed by law to be deposited therein.  This fund shall be used for carrying out the provisions of law relating to driver licensing, driver improvement, financial responsibility, cost of furnishing abstracts of driving records and maintaining such case records, and to carry out the purposes set forth in RCW 43.59.010."
             [[Orig. Op. Page 2]]
            The primary revenue sources of this fund are motor vehicle operators' license fees and certain fines and bail forfeitures collected for violations of the motor vehicle code.  See, RCW 46.68.040 and 46.68.050.  You have advised that the fund is currently used to finance some 34 different programs which are administered by the divisions of financial responsibility, driver improvement and driver licensing of the state department of motor vehicles.1/
            Question (1):
            Your first question is whether anything contained in Article II, § 40 (Amendment 18) of the state Constitution would prohibit the legislature from transferring to the state motor vehicle fund those revenue sources which currently are earmarked for the highway safety fund.  The constitutional provision referred to in this question reads as follows:
            "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 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.  Such highway purposes shall be construed to include the following:
            "(a) The necessary operating, engineering and legal expenses connected with the administration of public highways, county roads and city streets;
            "(b) The construction, reconstruction, maintenance, repair, and betterment of public highways, county roads, bridges and city streets; including the cost and expense of (1) acquisition of rights-of-way, (2) installing, maintaining and operating traffic signs and signal lights, (3) policing by the state of public highways, (4) operation of movable span bridges, (5) operation of ferries which are a part of any public highway, county road, or city street;
             [[Orig. Op. Page 3]]
            "(c) The payment or refunding of any obligation of the State of Washington, or any political subdivision thereof, for which any of the revenues described in section 1 may have been legally pledged prior to the effective date of this act;
            "(d) Refunds authorized by law for taxes paid on motor vehicle fuels;
            "(e) The cost of collection of any revenues described in this section:
            "Provided, That this section shall not be construed to include revenue from general or special taxes or excises not levied primarily for highway purposes, or apply 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."
            As you will note from reading this provision, it in no way restricts the sources of funds which may, constitutionally, be paid into the "special fund" created thereby for highway purposes ‑ i.e., the motor vehicle fund.  The sense of the proviso at the end of the amendment is merely that revenues from general or special excise taxes or from vehicle operators' licenses are not required to be placed in this fund where not levied or collected primarily for highway purposes.  Accord, AGO 55-57 No. 26 [[to Paul W. Ellis, Legislative Auditor on February 21, 1955]], copy enclosed; see, also, memorandum opinion dated December 11, 1970, copy enclosed in which (after quoting this proviso) we said:
            "The obvious purpose of the 18th amendment was to dedicate for highway purposes revenues derived from placing taxes on highway users.  The proviso quoted above makes it clear that not all tax revenues derived from 'highway users' are required to become dedicated funds."  (Emphasis supplied.)
            Therefore, if the legislature deems it appropriate to earmark for "highway purposes" certain of the revenues from vehicle operators' license fees or the various fines and forfeitures now going into the highway safety fund it may, constitutionally, do so.  However, of course, once this  [[Orig. Op. Page 4]] determination has been effectuated all of these revenues will thereafter be required by the 18th Amendment to be placed in the motor vehicle fund instead ‑ so long as the law manifesting this determination to apply the funds to these purposes remains in effect.
            Question (2):
            The critical issue raised by your second question is whether each of the present statutory uses to which the highway safety fund is now put may be said to constitute a "highway purpose" within the meaning of the 18th Amendment, supra, so as to allow these moneys to continue to be used in this manner even if they are made an integral part of the constitutionally earmarked motor vehicle fund.
            From the fact that the various programs now financed by the highway safety fund have historically been funded in this manner it appears to us that the legislature has already answered this question by placing a construction upon the 18th Amendment, supra, as not applying thereto.  Otherwise ‑ i.e., if these programs were deemed to be "highway purposes" under the Constitution ‑ the legislature's retention of the highway safety fund moneys outside of the motor vehicle fund would be, itself, unconstitutional since (as above noted) any revenues "intended to be used for highway purposes" are required to be placed in this latter fund.
            Of course, we will not, as a matter of policy, indulge in any presumption that our legislature has enacted an unconstitutional act; on the contrary, it has long been our practice to presume any duly enacted statutes to be constitutionally valid until otherwise held by a court of competent jurisdiction.  Accord, AGO 1971 No. 12 [[to Gordon L. Walgren, State Senator on March 16, 1971]], copy enclosed.
            Moreover, it has been held by our supreme court that a legislative interpretation of the Constitution extending over a long period of years is entitled to considerable weight in determining the meaning of that basic document.  See, e.g., State ex rel. Todd v. Yelle, 7 Wn.2d 443, 110 P.2d 162 (1941).  Thus, it seems likely that the court would pay heed to the legislature's long practice of funding all of the programs you have listed from outside the motor vehicle fund in determining whether any of them could, constitutionally, be funded from within it.

            Accordingly, we would at this late date have to express a substantial degree of doubt as to the constitutionality of any bill abolishing the highway safety fund  [[Orig. Op. Page 5]] as presently constituted and making the moneys therein an integral part of the motor vehicle fund ‑ while at the same time continuing to draw upon these moneys to finance programs the same as these to which these moneys are now applied.  A better solution to the problem of more adequately funding the operations of the highway safety fund would be to leave this fund in existence outside of the motor vehicle fund and simply add to its sources of income certain general or special excise taxes or other revenue sources not levied primarily for highway purposes.  Accord, memorandum opinion of December 11, 1970, supra.
            We trust the foregoing will be of assistance to you.
Very truly yours,
Philip H. Austin
Deputy Attorney General
                                                         ***   FOOTNOTES   ***
1/A complete listing of these programs was appended to your letter and, in turn, is attached hereto and by reference incorporated herein.