State ex rel. O'Connell v. Slavin

• Decision Date: 20 March 1969
• Docket Number: No. 40476,40476
• Citation: 452 P.2d 943,75 Wn.2d 554
• Court: Washington Supreme Court
• Parties: The STATE of Washington on the relation of John J. O'CONNELL, as Attorney General, Respondent, v. Richard H. SLAVIN, as Director of the Planning and Community Affairs Agency, Appellant.

Page 554

75 Wn.2d 554

452 P.2d 943

The STATE of Washington on the relation of John J O'CONNELL, as Attorney General, Respondent, v. Richard H. SLAVIN, as Director of the Planning and Community Affairs Agency, Appellant.

No. 40476.

Supreme Court of Washington, En Banc.

March 20, 1969.

Rehearing Denied July 10, 1969.

Slade Gorton Atty. Gen., Edward Starin, Sp. Asst. Atty. Gen., Robert N. Gates, Jr., Asst. Atty. Gen., Olympia, for appellant.

Thomas R. Garlington, Spec. Asst. Atty. Gen., Tacoma, Slade Gorton, Atty. Gen., Delbert W. Johnson, Asst. Atty. Gen., Olympia, for respondent.

ROSELLINI, Judge.

This is an action for declaratory judgment to determine the constitutionality of an appropriation contained in chapter 143 of the Laws of 1967, Extraordinary Session. The appropriation is in the amount of $250,000, and was provided in the following language:

PLANNING AND COMMUNITY AFFAIRS AGENCY

Motor Vehicle Fund Appropriation to assist metropolitan municipal corporations to make the planning, engineering, financial and feasibility studies incident to the preparation of a comprehensive public transportation plan; it is the intent of the legislature, in providing for these studies, to promote future savings in the construction reconstruction, repair and betterment of public highways, county roads, bridges, and city streets * * *. $250,000

Pursuant to this appropriation, the appellant entered into an agreement with the municipality of Metropolitan Seattle, whereby, for an agreed consideration of $250,000, that body would conduct the planning, engineering, financing and feasibility studies incident to the preparation of a comprehensive public transportation plan for the area of Metropolitan Seattle. These studies have been completed and the results have been published in a report described by the consultant, DeLeuw, Cather & Company, which prepared the report, as follows:

It covers the design elements of the transit system which were not included in previous studies, and it provides a more accurate estimate of cost based on engineering studies * * *.

On motion for summary judgment, the trial court sustained the Attorney General's contention that the appropriation was violative of the eighteenth amendment of the Washington State Constitution (Const. art. 2 § 40) which reads as follows:

§ 40 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 (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. (Added by Amendment 18, approved Nov. 1944 (L. 1943 p. 938, H.J.R. No. 4.))

On appeal, the director of the planning and community affairs agency contends that under a liberal construction of the amendment, the planning of a public transportation system serves a 'highway purpose.'

Certain applicable rules of construction must be borne in mind in approaching this question. The first of these is that the state constitution is not a grant, but a restriction on the lawmaking power; and the power of the legislature to enact all reasonable laws is unrestrained except where, either expressly or by fair inference, it is prohibited by the state or federal constitutions. Pacific American Realty Trust v. Lonctot, 62 Wash.2d 91, 381 P.2d 123 (1963).

The construction and interpretation of statutes and of provisions of the constitution is a judicial function. State ex rel. Humiston v. Meyers,61 Wash.2d 772, 380 P.2d 735 (1963).

Words in the constitution must be given their common and ordinary meaning. State ex rel. Albright v. Spokane, 64 Wash.2d 767, 394 P.2d 231 (1964).

If the constitutional language is clear and unambiguous, interpretation by the courts is improper; but if the language is unclear and ambiguous, judicial interpretation is not only proper but is an essential responsibility of the courts. State ex rel. Swan v. Jones, 47 Wash.2d 718, 289 P.2d 982 (1955).

Where the words of a constitution are unambiguous and in their commonly received sense lead to a reasonable conclusion, it should be read according to the natural and most obvious import of its framers, without resorting to subtle and forced construction for the purpose of limiting or extending its operation. State ex rel. Torreyson v. Grey, 21 Nev. 378, 32 P. 190, 19 L.R.A. 134 (1893).

It is not for the court to engraft an exception where none is expressed in the constitution, no matter how desirable or expedient such an exception might seem. State ex rel. O'Connell v. Port of Seattle, 65 Wash.2d 801, 399 P.2d 623 (1965).

Applying these principles and rules to the question before us, we find that the constitutional provision in question is free of ambiguity. In words of plain and commonly understood meaning, it provides that the revenues derived from motor vehicle licenses and excise taxes on fuel, as well as other state revenue intended to be used for highway purposes, shall be paid into a special fund to be used exclusively for Highway purposes. Lest that term be too narrowly construed, the people have defined its scope in the succeeding subparagraphs (a) through (e). If there were any doubt that the funds were intended to be used exclusively for ways open to the public for motor vehicular traffic, these clarifying provisions should remove them. Bridges and ferries, which might not ordinarily be considered highways, are expressly included because they are a part of such highways; that is to say, motor vehicular traffic must use them in crossing rivers or bodies of water. Roads and streets are expressly included, thus removing any doubt that they come within the definition of highways. Expenses of administration, of construction, reconstruction, maintenance, repairs and betterment are expressly included. But all of the purposes which are listed pertain to highways, roads and streets, all of which are by nature adapted and dedicated to use by operators of motor vehicles, both public and private, and none of them pertain to other modes of transportation, such as railways, waterways, or airways. Nor is there any authorization for the expenditure of these funds for the purchase or maintenance of any type of vehicle for public transportation purposes.

Thus the words of this provision are unambiguous, and in their commonly received sense lead to a reasonable conclusion, that the people in framing this provision intended to insure that certain fees and taxes paid by them for the privilege of operating motor vehicles should be used to provide roads, streets and highways on which they could drive those vehicles. Express provision was made for the financing of certain structures and activities which might not be considered strictly within the definition of highway purposes, but which were considered necessary for the effectuation of those purposes. For purposes of constitutional interpretation, the express mention of one thing implies the exclusion of another which might logically have been considered at the same time. Yelle v. Bishop, 55 Wash.2d 286, 347 P.2d 1081 (1959).

The appellant accepts the definition of highway adopted by this court in State ex rel. O--W R.R. & Navigation Co. v. Walla Walla Cy., 5 Wash.2d 95, 104 P.2d 764 (1940), which was taken from 25 Am.Jur. Highways § 2 (1940):

'A highway is a way open to the public at large, for travel or transportation, without distinction, discrimination, or restriction, except such as isincident to regulations calculated to secure to the general public the largest practical benefit therefrom and enjoyment thereof. Its prime essentials are the right of common enjoyment on the one hand and the duty of public maintenance on the other. It is the right of travel by all the world, and not the exercise of the right, which constitutes a way a public highway, and the actual amount of travel upon it is not material. If it is open to all who desire to use it, it is a public highway although it may accommodate only a limited portion of the public or even a single family or although it accommodates some individuals more than others.' * * * What is a public transportation system? It is not a 'way' at all, but is a number of buses, trains, or other carriers each holding a number of passengers, which may travel upon the highways or may travel upon rails or water, or through the air, and which are owned and operated, either publicly or privately, for the transportation of the public....