(concurring in part, dissenting in part) — I concur in the majority's holding that the trial courts did not err in entering summary judgments against the Washington Public Power Supply System (Supply System) and ordering the bridge and termination loans immediately due and payable.
I dissent to the majority's limitation of the form of judgment to "special fund" revenues of Washington nuclear plants (WNP) 4 and 5. I would hold that pursuant to RCW 43.52.391 and language of the loan agreements all member lenders are entitled to repayment of the loans out of the proceeds of revenue bonds, operating revenue, or any other funds of the Supply System including those of WNP 1, 2 and 3.
RCW 43.52.391
The primary statute involved here is RCW 43.52.391 which provides in pertinent part:
Any member of an operating agency may advance or contribute funds to an agency as may be agreed upon by the agency and the member, and the agency shall repay such advances or contributions from proceeds of revenue bonds, from operating revenues or from any other funds of the agency, together with interest not to exceed the maximum specified in RCW 43.52.395(1). The legislative body of any member may authorize and make such advances or contributions to an operating agency to assist in a plan for termination of a project or projects, whether or not such member is a participant in such project or projects. Any member who makes such *383advances or contributions for terminating a project or projects in which it is not a participant shall not assume any liability for any debts or obligations related to the terminated project or projects on account of such advance or contribution.
(Italics mine.)
This statute is part of RCW 43.52 which in 1957 authorized the creation of operating agencies "for the purpose of acquiring, constructing, operating and owning plants, systems and other facilities and extensions thereof, for the generation and/or transmission of electric energy and power." RCW 43.52.360. When the Legislature authorized the creation of operating agencies it granted such agencies two separate and distinct methods of acquiring working capital. RCW 43.52.391 delineates one of these methods. Members of the Supply System are authorized to "advance or contribute funds to an agency" particularly "to assist in a plan for termination of a project or projects, whether or not such member is a participant in such project or projects." RCW 43.52.391. That statute provides the authority for members of the Supply System to make the bridge and termination loans. And, that statute provides that the Supply System "shall repay such advances or contributions from proceeds of revenue bonds, from operating revenues or from any other funds of the agency, together with interest not to exceed the maximum specified in RCW 43.52-.395(1)."
The statutory language is unequivocal. In RCW 43.52.391 the Legislature authorized members of the Supply System to make discretionary advances to the System. It further specified the sources from which the Supply System shall repay the advances. It imperatively states that the advances shall be repaid "from proceeds of revenue bonds, from operating revenues or from any other funds of the agency . . ." RCW 43.52.391.
In accord with the rule that words in a statute must be given their usual and ordinary meaning, use of the word "shall" is imperative and operates to create a duty. The *384presumption which follows the use of the word "shall" is strengthened when "a provision contains both the words 'shall' and 'may,'" the court further presuming "that the lawmaker intended to distinguish between them, 'shall' being construed as mandatory and 'may' as permissive." Scannell v. Seattle, 97 Wn.2d 701, 704, 648 P.2d 435, 656 P.2d 1083 (1982).
The majority's contention that the directive "shall" simply mandates repayment and is not a directive of repayment from a specific source of funds is unavailing. If the Legislature did not mean to mandate repayment from "any funds of the agency," then why name such funds as a source of repayment. Certainly, the discretionary advances and contributions authorized by the first clause would presumably include a requirement of repayment. Had the Legislature wished to grant the parties the option of repayment from restricted funds, it could have merely indicated that the agency shall repay such advances as agreed. It did not leave that vacuum or ambiguity. It specified in mandatory language that such advances "shall" be repaid "from proceeds of revenue bonds, from operating revenues or from any other funds of the agency ..." (Italics mine.)
The majority's attempt to create an ambiguity through the use t>f additional language in RCW 43.52.391 is also unfounded. Although it is true that public utility districts have the authority to establish special funds and the Supply System has been granted most of the powers granted public utilities, it does not follow that the Supply System has the authority to establish a special fund for repayment of contributions or advances from its members. RCW 43.52.391 specifically states that "[ejxcept as otherwise provided in this section, a joint operating agency shall have all powers now or hereafter granted public utility districts under the laws of this state" (italics mine). The power to establish special funds for repayment of advances is otherwise provided for in this section by the directive that they be repaid from the listed sources including any funds of the agency. Thus, the Supply System is exempted from public *385utility district authority to establish a special fund for repayment of member advances and contributions. No ambiguity exists between these provisions.
The majority additionally relies on the language of RCW 43.52.391 prohibiting the issuance of general obligation bonds. Again, I see no inconsistency. The repayment of advances or contributions from any funds of the agency is not violative of this prohibition. General obligation bonds are those backed by a pledge of the taxing power of the issuing governmental entity. Such bonds are payable from an unlimited general ad valorem tax on all taxable property within the confines of the governmental entity. See 15 E. McQuillin, Municipal Corporations § 43.05 (3d rev. ed. 1985); R. Lamb & S. Rappaport, Municipal Bonds 9-10, 99 (1980). The repayment provisions relating to advances and contributions do not fall within the definition of general obligation bonds. Repayment is confined to the available funds of the Supply System and the System is without the authority to levy taxes for the repayment of these obligations.
The majority's holding is further weakened by the distinctions the Legislature created in the only other method of acquiring working capital. The Supply System has the authority to issue "revenue bonds or warrants payable from the revenues of the utility properties operated by it." RCW 43.52.3411. "Revenue bonds or warrants" is defined to mean "bonds, notes, bond anticipation notes, warrants, certificates of indebtedness, commercial paper, refunding or renewal obligations, payable from a special fund or revenues of the utility properties operated by the joint operating agency." (Italics mine.) RCW 43.52.250. When the Supply System issues revenue bonds or warrants, it must follow the procedures set forth in RCW 43.52.3411, which include "all the provisions of law as now or hereafter in effect relating to revenue bonds or warrants of public utility districts ..."
In contrast, the Legislature made no reference to repayment from a special fund in enacting the provisions relating *386to contributions or advances from members of an operating agency. The Legislature instead stated that "the agency shall repay such advances or contributions from proceeds of revenue bonds, from operating revenues or from any other funds of the agency ..." RCW 43.52.391.
The Legislature has made an express distinction between "revenue bonds or warrants" authorized pursuant to RCW 43.52.3411 and "advance[d] funds" authorized pursuant to RCW 43.52.391. The former are "payable from the revenues of the utility properties operated by it"; the latter are payable "from proceeds of revenue bonds, from operating revenues or from any other funds of the agency ..." This court is not permitted to remove this distinction nor add language to the legislative scheme which is clearly expressed.
I would therefore hold as a matter of law that the termination and bridge loans constitute obligations payable from proceeds of revenue bonds, from operating revenues, or from any other funds of the agency and are not subject to a special fund.
Lending Agreements
Contrary to the majority's assertion, I find no ambiguity in the lending agreements and resolutions which support an interpretation that the revenues of WNP 4 and 5 are the sole source of funds pledged to repay advances and contributions. Even if the majority's construction of the agreements was plausible, the provisions of the resolutions and loan agreements which contravene the express mandate of RCW 43.52.391 would be void and unenforceable.
As a preliminary matter, it is important to outline the documents involved in each transaction. The Supply System received bridge loans in October and December of 1981. The termination loans were made in January and March of 1982. Each loan involved the following documents: (1) a resolution adopted by the Supply System authorizing the issuance of subordinated revenue notes; (2) a participants' agreement to advance costs; (3) a subordinated revenue note; and (4) an escrow agreement. All the *387resolutions, agreements, and notes contained basically the same language. The following language contained in the documents outlined above is relevant to the issue here.
The loan agreement notes state that they are "payable solely out of the special fund of the System known as [name of fund stated]." The notes further state in substantially identical terms:
Reference is hereby made to the Note Resolution, Agreement and Escrow Agreement, copies of which are on file in the principal office of the System, and to all of the provisions (other than findings or determinations made by the System in the Note Resolution) of which the registered owner of this Note by its acceptance hereof hereby assents, for definitions of terms; the description of and nature and extent of the security for this Note; the moneys from which the principal of and interest on this Note are payable; the terms and conditions under which the System may issue additional bonds, notes or other evidences of indebtedness payable prior to or on a parity herewith; the rights and remedies of the holder hereof with respect hereto and thereto; and the rights, duties and obligations of the System hereunder.
(Italics mine.)
The operative language which created the special funds and which identified the assets pledged thereto is contained in section 3 of resolutions 1199 and 1204. Both resolutions are substantially identical with the exception of the dates stated therein. Resolution 1204 provides:
Section 3. Note Retirement Fund. There is hereby created a special fund of the System to be known as "Washington Public Power Supply System Nuclear Projects Nos. 4 and 5 Subordinated Revenue Notes Retirement Fund". The 1982 Note Retirement Fund shall be held in trust and administered by the System and shall be used solely for the purpose of paying the principal of and interest on the Notes. The System pledges, obligates and binds itself irrevocably to set aside and to pay on or before the 29th day of June, 1983, to the extent not provided from any other available sources, out of the revenues, income, receipts, profits and other moneys, including but not limited to amounts received under the *388Participants' Agreements, theretofore paid into the Revenue Fund, an amount equal to the principal of and interest on the Notes falling due on June 30, 1983.
(Italics mine.)
Under this plain and unambiguous language, the Supply System irrevocably pledged itself to set aside an amount equal to the principal of and interest on the loan agreement notes. This pledge expressly applied not only to "revenues, income, receipts, profits and other moneys, including but not limited to amounts received under the Participants' Agreements," but also to "other available sources." Resolution 1204, § 3. This language identified the assets pledged to the fund. The Supply System's undertaking in the plain language of both the resolutions and notes is consistent with the Supply System's statutory obligations to repay advances and contributions "from proceeds of revenue bonds, from operating revenues or from any other funds . . ."of the Supply System. RCW 43.52.391.
Looking at the loan agreement resolutions, it is clear that two sources of repayment are specified. The first source is "other available sources." The secondary source is "revenues, incomes, receipts, profits and other moneys, . . . theretofore paid into the Revenue Fund ..." The intent is clear that the words "other available sources" mean something other than the enumerated sources paid into the revenue fund. The words "other available sources" are used as an exception. They encompass "proceeds of revenue bonds" and "any other funds" as required by RCW 43.52.391. The specifically named sources clearly connote items which are "operating revenues," the third source specified in the statute.
The mandatory repayment language receives additional support from section 4 of the note resolution which provides:
The pledge hereby made by the System shall be valid and binding from the time of the adoption of this Resolution. The revenues, income, receipts, profits and other money so pledged under this Resolution, and hereafter *389received by the System, shall immediately be subject to the lien of such pledge without any physical delivery or further act, and, subject to the provisions of this Resolution, the lien of the aforesaid pledge shall be valid and binding as against any party having claims of any kind in tort, contract or otherwise against the System irrespective of whether such parties have notice of the foregoing pledge.
This provision gave the lenders an equitable lien on the revenues, income, receipts, profits and other moneys that the Supply System irrevocably pledged to the note retirement funds.
There is absolutely no indication that repayment is intended to be limited to funds of a specific project (i.e., WNP 4 and 5). RCW 43.52.391 mandates repayment from "funds of the agency" not revenues of a specified project. The lending agreements, although delineating the repayment funds as "Projects Nos. 4 and 5 Subordinated Revenue Notes Retirement Fund", also do not limit the source of repayment funds to a particular project. The language consists of an obligation by the "System" to pay from "available sources" and if not available, out of "revenues, income, receipts, profits and other moneys".
The loan documents themselves explicitly incorporate existing statutory law. Section 11 of resolution 1199 and 1204 provides:
Resolution and Laws a Contract with Noteholders. This Resolution is adopted under the authority of and in full compliance with the Constitution and laws of the State of Washington, including Titles 43 and 54 of the Revised Code of Washington, as amended and supplemented. In consideration of the purchase and acceptance of the Notes by those who shall hold the same from time to time, the provisions of this Resolution and of said laws shall constitute a contract with the holder or holders of each Note, and the obligations of the system under said laws and under this Resolution shall be enforceable by any court of competent jurisdiction.
(Italics mine.) The absolute repayment duty created by RCW 43.52.391, unrestricted as to repayment source, *390therefore, was agreed upon by the parties. The loan instruments reflect no limitation on the source of repayment funding to WNP 4 and 5.
The thrust of the majority's limitation of the repayment source to the revenues of WNP 4 and 5 is the avoidance of creating a lender's priority on all Supply System funds. We are not, however, concerned with priorities. RCW 43.52.391 does not create priorities but merely mandates repayment from any funds of the Supply System. The nature of "any other fund" or "other available sources" cannot be determined at this time. The lenders will have to seek to execute on their judgments, limited as they may be to funds not subject to prior or superior claims, through the procedure for collection of judgments against municipal corporations provided by RCW 6.04.140 and .150. The Supply System has a plethora of creditors such as contractors, bondholders, and judgment creditors, including the lenders in this action. The priority of creditors vis-a-vis one another must be determined in litigation in which all necessary parties are present. The question as to the existence of prior claims against the particular funds sought by these lenders and thus the funds' availability to satisfy the judgments, can be resolved at the time of those collection efforts.
Conversion
I concur with the majority's determination that no conversion occurred in the July 25 transfer of WNP 4 and 5 construction fund moneys to Chemical Bank. I do so, however, under differing analysis. Although RCW 43.52.391 mandates repayment from any funds of the Supply System, it does not address priorities as to the available funds. To determine entitlement to the construction fund moneys, we must examine the contractual agreements among the parties. Resolution 1199 provides that the note holders (lenders) shall have a prior charge over all other charges against the moneys pledged for repayment of the notes, and the bond fund has superiority on all funds required to be paid to the bond fund.
*391Such charge on the revenues, income, receipts and profits and other moneys, but not on the amounts held in the Note Retirement Fund, is subject and subordinate to the payments required by the Bond Resolution to be made to the Bond Fund created thereby and to the expenses of operating and maintaining the Projects including amounts owed to the Bond Fund Trustee or others under the Bond Resolution as contemplated thereby.
The construction fund moneys were specifically pledged to the bond fund. The Bond Resolution provides that " [ijnterest accruing on the Bonds to July 1, 1988, which is not payable from deposits from the Revenue Fund to the Bond Fund" is a cost of construction and payable out of the construction fund. Bond Resolution § 6.9(F). Furthermore, any surplus in the construction fund must be credited to the bond fund to pay the interest on the bonds before it is used to pay other debts. Bond Resolution § 6.11.
Thus, the lenders have no valid claim to the construction fund moneys of WNP 4 and 5 as "any funds of the agency" due to the bondholders' superior position in regard to construction fund moneys.
Conclusion
It is error to limit collection of summary judgments approved herein to assets of WNP 4 and 5; restrictive language in such judgments exonerating WNP 1, 2 and 3 from any and all liability is without legal basis. I cannot condone the majority's creation of ambiguity upon ambiguity to reach a desired result. The governing statute and corresponding agreements between the parties mandate that the loans be repaid from the proceeds of revenue bonds, operating revenue, or any other funds of the Supply System. The appropriate resolution of this action could not be more evident.
Goodloe, J., concurs with Dore, J.After modification, further reconsideration denied February 11, 1986.