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Bob Ferguson

AGLO 1978 No. 10 -
Attorney General Slade Gorton


Because of the provisions of Article VIII, § 4 (Amendment 11) of the Washington State Constitution, the full amount of $375,000 which was appropriated to the State Parks and Recreation Commission by § 15(14), chapter 338, Laws of 1977, 1st Ex.Sess., ". . . for the acquisition of 124 acres adjacent to Dash Point state park . . ." may not be expended for the purchase of a smaller, 75-acre portion of the larger tract.

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                                                                  March 17, 1978

Honorable Charles H. Odegaard
Washington State Parks and
Recreation Commission
P.O. Box 1128
Olympia, Washington 98504                                                                                                              Cite as: AGLO 1978 No. 10

Dear Sir:

            By letter previously acknowledged, you requested our opinion on a question which we paraphrase as follows:

            May the full amount of $375,000 which was appropriated to the State Parks and Recreation Commission by § 15(14), chapter 338, Laws of 1977, 1st Ex.Sess., ". . . for the acquisition of 124 acres adjacent to Dash Point state park . . ." be expended for the purchase of a 75-acre portion of the larger tract?

            We answer this question in the negative for the reasons set forth in our analysis.

             [[Orig. Op. Page 2]]                       ANALYSIS

            Chapter 338, Laws of 1977, 1st Ex.Sess. is an appropriations act containing the current (1977-79) state capital budget.  Section 15 covers a number of capital project appropriations to the State Parks and Recreation Commission including, in subsection (14), the following:

            "(14) Acquisition of land at Dash Point for state park.

                        Reappropriation Appropriation

            General Fund‑--ORA                                       0                                                         375,000

            Project            Estimated         Estimated         Estimated

            Costs  Costs              Total               Completion

            Through           7/1/79 and        Costs               Date

            6/30/77           Thereafter

                        0                     0                      375,000                                   N/A

            The appropriation contained in this subsection is for the acquisition of 124 acres adjacent to Dash Point state park giving that tidelands park adequate area to serve the large metropolitan population in its area."

            Subsequent to the passage of that appropriation, however, an appraisal was conducted of the area thus to be acquired which established its fair market value at $610,000 (or $5,000 per acre).1/   Accordingly, the Commission has now determined to pursue, if possible, an alternative plan which you have briefly described as follows:

            "1. Parks to purchase 75 acres directly abutting Dash Point for $375,000. This is per the appraisal of $5,000 per acre.

            "2. Parks to take a $1 option, as provided by statute, on the remaining 47 acres for $235,000 to be executed within 90 days after the end of the 1979 legislative session.  This would provide the opportunity for legislative consideration."

             [[Orig. Op. Page 3]]   Your question, in essence, is whether this may be done.  We regret to advise that, in our opinion, it may not, primarily because of Article VIII, § 4 (Amendment 11) of the Washington State Constitution which provides that:

            "No moneys shall ever be paid out of the treasury of this state, or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment be made within one calendar month after the end of the next ensuing fiscal biennium, andevery such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum."  (Emphasis supplied)

            The legislature clearly must operate within the framework of this constitutional provision and its acts are presumed valid on the basis such constitutional limitations are, in fact, observed.  Aetna Life v. Washington Life, 83 Wn.2d 523, 528, 520 P.2d 162 (1974);Anderson v. Morris, 87 Wn.2d 706, 716, 558 P.2d 155 (1976); Spokane v. Vaux, 83 Wn.2d 126, 129, 516 P.2d 209 (1973);Homes Unlimited v. Seattle, 17 Wn.App. 47, 50 (1977).  However, the constitutional limitations of Article VIII, § 4, supra, are observed in this case only if the language of the questioned appropriation constitutes a distinct specification of the object to which the appropriation is to be applied.  Conversely, the requirement that that object be distinctly specified would be violated if the questioned language were construed to mean anything other than what it plainly says;i.e., "for the acquisition of 124 acres adjacent to Dash Point state park. . . ."  Therefore, any attempt to use the full amount of the appropriation for the acquisition of anything less would be to apply the appropriated funds to an object other than that distinctly specified by the legislature.2/   And, in addition, it should be noted that  [[Orig. Op. Page 4]] such a misapplication of appropriated funds would also be contrary to § 2, chapter 320, Laws of 1977, 1st Ex. Sess. (RCW 43.88.290) which provides that:

            "No state officer or employee shall intentionally or negligently:  Over-expend or over-encumber any appropriation made by law; fail to properly account for any expenditures by fund, program, or biennium; or expend funds contrary to the terms, limits, or conditions of any appropriation made by law."  (Emphasis supplied)

            It is difficult to divine the degree with which a particular object of an appropriation must be realized.  De minimis failure of realization might be acceptable in certain circumstances where the legislature could be clearly shown to have intended that only substantial realization be achieved.  However, we need not seek to determine whether the legislature, in this case, intended that the specific object of the appropriation be only substantially, as opposed to completely, realized because here the expenditure which you propose would not even substantially realize the object specified.


            In light of the constitutional and statutory limitations placed on application of appropriated funds, the specificity with which the legislature defined the object to which this appropriation in chapter 338, Laws of 1977, 1st Ex.Sess., could be applied, and the failure of the proposed expenditure to substantially achieve the legislatively specified objective, we are compelled to conclude that the alternative expenditure plan which you propose may not be pursued.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Since the date that the appropriation was made, two acres have also been sold from the 124-acre parcel initially available for sale.  The agency's approved appraisal is thus actually on 122 acres.

2/For us to conclude otherwise would necessitate our reading into the appropriation a qualifying phrase such as "or so much of that acreage as may be acquired by means of this appropriation." This we cannot do ‑ although the legislature itself most certainly could (and probably should) have.