AGO 1961 No. 58 - Aug 29 1961
OFFICES AND OFFICERS ‑- STATE ‑- TOLL BRIDGE AUTHORITY ‑- APPLICATION OF RCW 47.56.220 TO PROPOSED CONSTRUCTION OF THE GOVERNMENT ISLAND BRIDGE ACROSS THE COLUMBIA RIVER.
(1) The provisions of RCW 47.56.220 barring the construction of other bridges within ten miles of an existing span, would be applicable to the proposed government island bridge if the bonds for such project were issued by the Washington toll bridge authority, but would not be applicable to toll bridge bonds issued by class A and first class counties, by port districts, or by the state of Oregon, or any of its subdivisions.
(2) If the government island toll bridge bonds are issued under the toll bridge authority, making RCW 47.56.220 applicable, a waiver by the bondholders to permit the construction of other bridges under certain conditions could be incorporated in the toll bridge authority's bond resolution. If the proposed bridge be of a federal character the waiver by the bondholders should be included in the bond resolution.
- - - - - - - - - - - - -
August 29, 1961
Honorable Al Henry
State Senator, 17th District
White Salmon, Washington
Cite as: AGO 61-62 No. 58
By letter previously acknowledged you requested an opinion of this office on several questions which will arise in the event the proposed government island bridge is constructed across the Columbia river. We paraphrase your questions as follows:
1. Do the provisions of RCW 47.56.220, barring the construction of other bridges within ten miles apply in the case of the proposed government island bridge?
2. Would the fact that the proposed bridge across the Columbia in the vicinity of 33rd Avenue on the Oregon side will probably be a part of the interstate system render the provisions of RCW 47.56.220 inapplicable?
We answer these questions in the manner set forth in our analysis.
[[Orig. Op. Page 2]]
RCW 47.56.220 prohibits any other crossing within ten miles of a toll bridge so long as any bonds issued for its construction are outstanding and unpaid:
"As long asany of the bonds issued hereunder for the construction of any toll bridge are outstanding and unpaid, there shall not be erected, constructed or maintained any other bridge or other crossing over, under, through or across the waters over which such toll bridge is located or constructed, connecting or joining directly or indirectly the lands or extensions thereof or abutments thereon on both sides of the waters spanned or crossed by such toll bridge within a distance of ten miles from either side of such toll bridge excepting bridges or other highway crossings actually in existence and being maintained, or for which there was outstanding an existing and lawfully issued franchise, at the time of the location of such toll bridge and prior to the time of the authorization of such revenue bonds, . . ." (Emphasis supplied.)
RCW 47.56.220, by its provisions, is made binding on the state, its municipal corporations and subdivisions, and even limits the powers of the legislature:
". . . The provisions of this section shall be binding upon the Washington toll bridge authority, the state of Washington and all of its departments, agencies or instrumentalities as well as any and all private, political, municipal and public corporations and subdivisions, including cities, counties, and other political subdivisions and the prohibitions of this section shall restrict and limit the powers of the legislature of the state of Washington in respect to the matters herein mentioned as long as any of such bonds are outstanding and unpaid and shall be deemed to constitute a contract to that effect for the benefit of the holders of all such bonds."
[[Orig. Op. Page 3]]
In AGO 59-60 No. 142, dated September 19, 1960, we discussed at length the statutory background of RCW 47.56.220 and the analogous statute under the ferry act, RCW 47.60.120. We pointed out that RCW 47.56.220 was part of the original 1937 toll bridge act (§ 13, chapter 173, Laws of 1937). It is to be noted that RCW 47.56.220, by its terms, applies only to "any of the bonds issued hereunder," namely, under the provisions of the toll bridge act, chapter 173, Laws of 1937.
The toll bridge authority is not the only division of state government empowered to issue revenue bonds to finance the construction of toll bridges. Port districts and class A and first class counties may also do so. Port districts were granted this authority by the 1959 legislature (§ 1, chapter 236, Laws of 1959; chapter 53.34 RCW). By virtue of this legislation the Port of Camas-Washougal would be authorized to finance and construct a government island toll bridge. In AGO 51-53 No. 165, dated November 7, 1951 [[to Prosecuting Attorney, King County]], we concluded that class A and first class counties had statutory authority under chapter 192, Laws of 1937 (uncodified), to finance and construct toll bridges. In a recent opinion, AGO 59-60 No. 149, dated October 4, 1960 [[to Prosecuting Attorney, Whatcom County]], we determined that counties of other classes did not have such authority. Inasmuch as Clark county is a county of the second class it does not have statutory authority to issue revenue bonds to build a toll bridge.
In AGO 51-53 No. 165 we pointed out that chapter 192, Laws of 1937, is an independent enactment, specifying the conditions and manner of sale of county toll bridge revenue bonds. Chapter 53.34 RCW is also such an independent enactment. It is our opinion that inasmuch as county and port district toll bridge revenue bonds are issued by virtue of separate, independent acts, the provisions of RCW 47.56.220 of the toll bridge act are inapplicable. By its plain terms RCW 47.56.220 is limited to bonds issued under the provisions of the toll bridge act, namely, chapter 173, Laws of 1937. It is a cardinal rule of statutory construction that where the words of a statute are precise and unambiguous, the words, in their natural and ordinary sense, best declare the legislative intent. In re Eaton's Estate, 170 Wash. 280, 16 P. (2d) 433 (1932).
Similarly, if the state of Oregon or any of its subdivisions were to construct the proposed bridge at government island, it is our opinion that the provisions of RCW 47.56.220 would not be applicable.
If the toll bridge authority, however, were to issue bonds for the proposed bridge at Government Island, RCW 47.56.220 would be applicable and would bar other bridges from being constructed within ten miles until such bonds were paid and retired. This statute, it is to be noted, specifically excepts from its provisions bridges already in existence prior to the time of the authorization of such revenue bonds. Thus, the issuance of government island bridge bonds by the authority could not in any event affect any existing bridges [[Orig. Op. Page 4]] such as the present interstate bridges.
Even if the authority were to issue its bonds for the proposed government island bridge, making applicable the ten-mile limitation of RCW 47.56.220, the authority could, in its bond indenture, provide for the future construction of other bridges within ten miles, such as the proposed Thirty-third Avenue bridge. The provisions in the second Lake Washington bridge (Evergreen Point-Union Bay) bond indenture, resolution No. 341, permitting the construction of additional bridges within ten miles of the second Lake Washington bridge under certain conditions, were recently passed on and approved by our supreme court as a valid waiver by the bondholders of their contractual rights. State ex rel. Washington Toll Bridge Authority v. Yelle, 56 Wn. (2d) 86, 351 P. (2d) 493 (1960).
Your last inquiry concerns whether or not, if the proposed Thirty-third Avenue bridge across the Columbia were part of the interstate third Avenue bridge across the Columbia were part of the interstate system, it could be deemed exempt because of its federal character from the provisions of RCW 47.56.220. It is a long-standing policy of this office not to render opinions on hypothetical questions. However, inasmuch as in this case action may have to be taken at the time of sale of the bonds which would be controlling for twenty or thirty years in the future, we deem it advisable to answer your last inquiry to this extent: In connection with the issuance of the aforementioned second Lake Washington bridge bonds, the Washington toll bridge authority determined to incorporate in its bond resolution a waiver by the bondholders of the provisions of RCW 47.56.220. The authority was, of course, aware that a third bridge across the lake could well be on the federal interstate system and could well involve the use of federal funds. We are of the opinion that such action by the authority was prudent and could serve as a guide in connection with the project of which you inquire, if the bonds are issued under the toll bridge act.
In conclusion, it is the opinion of this office, in answer to your inquiries, as follows: The provisions of RCW 47.56.220 would only be applicable to a proposed government island toll bridge if the bonds for such project were issued by the toll bridge authority. The provisions of RCW 47.56.220 would not be applicable to toll bridge bonds issued by class A or first class counties, by the port districts, or by the state of Oregon or any of its subdivisions. If the government island toll bridge bonds are issued under the toll bridge act, making RCW 47.56.220 applicable, a waiver by the bondholders to permit the construction of other bridges under certain conditions could be incorporated in the toll bridge authority bond resolution. Even if it is contemplated that the Thirty-third Avenue bridge will be of a [[Orig. Op. Page 5]] federal character, we deem prudent the incorporation of a waiver by the bondholders in the bond resolution such as was done by the Washington toll bridge authority in connection with the issuance of the second Lake Washington toll bridge revenue bonds.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
STANTON P. SENDER
Assistant Attorney General