Washington State Highway Commission v. Pacific Northwest Bell Telephone Co.

Ott, J.

Franchises to permit the construction of utility facilities on the right of way of secondary state highway No. 5-A were gratuitously granted by the Washington State Highway Commission to Pacific Telephone and Telegraph Company (now Pacific Northwest Bell Telephone Company), Puget Sound Power and Light Company, and King County Water District No. 75. The franchises provided, inter alia, that the donees would move their facilities at their expense “Whenever necessary for the construction, repair, improvement, alteration or relocation of” the highway.

Pursuant to the Federal-Aid Highway Act of 1956, as amended, primary state highway No. 1 has been designated as a part of the interstate highway defense system. The state highway commission, in compliance with federal and state policy, adopted resolution No. 896, which provides in part:

“Public and private utility facilities shall not be permitted to occupy the right of way of the national system of interstate and defense highways within this state except as authorized by this resolution.”

The plan for construction of the interstate highway requires the removal of the utility facilities where the interstate highway intersects secondary state highway No. 5-A at Midway. March 7, 1960, the Director of Highways requested the three donees to remove and relocate their facilities.

*219Laws of 1959, chapter 330, § 2, p. 1629, RCW 47.44.030, provides in part:

“. . . Provided, That notwithstanding any contrary provision of law or of any existing or future franchise held by a public utility, the state highway commission shall pay or reimburse the owner for relocation or removal of any publicly, privately or cooperatively owned public utility facilities when necessitated by the construction, reconstruction, relocation or improvement of a highway which is part of the national system of interstate and defense highways for each item of cost for which the state shall be entitled to be reimbursed by the United States in an amount equal 'to at least ninety percent thereof under the provisions of section 123, Federal Aid Highway Act of 1958, and any other subsequent act of congress under which the state shall be entitled to be reimbursed by the United States in an amount equal to at least ninety percent of the cost of relocation of utility facilities on said national system of interstate and defense highways.”

A dispute arose between the donees and the state highway commission as to who should pay the $73,341.72 relocation cost.

The state highway commission and the Director of Highways instituted a declaratory judgment action in King County against each of the donees, contending that chapter 330, Laws of 1959, was unconstitutional, and that the removal and relocation expense should be paid by the donees. The actions were consolidated and tried upon an agreed statement of facts substantially as above set forth.

From the judgments declaring the act to be constitutional, and decreeing that the utility facilities be removed and relocated at state expense, the Washington State Highway Commission and the Director of Highways have appealed.

Appellants contend that payment of the removal and relocation cost from the motor vehicle fund is not an expenditure “exclusively for highway purposes,” and, hence, is violative of amendment 18 of the state constitution which provides:

“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 *220vehicle 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.”

We are here concerned with the meaning and scope of the phrase, “exclusively for highway purposes.” Rules of construction require that words in the constitution be given their usual, ordinary, and nontechnical meaning. Automobile Club of Washington v. Seattle, 55 Wn. (2d) 161, 167, 346 P. (2d) 695 (1959); Parkhurst v. Everett, 51 Wn. (2d) 292, 294, 318 P. (2d) 327 (1957), and cases cited.

The word “exclusive,” according to Webster’s New International Dictionary (2d ed.), means:

“1. Excluding or having power to exclude, . . . de*221bar from possession, participation, or use, etc.; . . . limiting or limited to possession, control, or use . . .
“4. Single; sole; . . . also, singly devoted; ...”

Since the adoption of the Eighteenth Amendment, this court has on two occasions construed the meaning and scope of the words, “exclusively for highway purposes.”

In State ex rel. Bugge v. Martin, 38 Wn. (2d) 834, 232 P. (2d) 833 (1951), the court held that the motor vehicle fund could be used to retire the bonds of the Agate Pass bridge, stating [p. 840]:

“. . . Inasmuch as the Agate pass bridge is being acquired to become a part of the state highway system, and money from the motor vehicle fund has been invested in bonds issued to provide funds for the construction of the bridge, bonds issued pursuant to the act are for highway purposes, and their issuance and sale does not offend amendment 18.”

In Automobile Club of Washington v. Seattle, supra, the question was: Does the phrase “exclusively for highway purposes” permit the use of the motor vehicle fund to satisfy a tort judgment arising from negligent operation of a movable span bridge on a city street, which was part of the state highway system? In the cited case, we held that the payment of a tort judgment was not a highway purpose and stated [pp. 167, 168]:

“. . . we are here confronted with a constitutional limitation adopted by the people, which is to be understood as their words used in their ordinary meaning and not in any technical sense. . . .
"... we think it was the intention of the people to limit expenditures from the motor vehicle fund to those things which would directly or indirectly benefit the highway system. Clearly, the payment of a tort judgment does not fall within this category. Such an expenditure could in no way contribute toward the safety, administration, or operation of our highway system, but, rather, would establish a precedent that could result in substantially decreasing those funds reserved for such purposes. This, we feel, would be a detriment rather than a benefit to our highway system.”

Measured by the above test and the definition of “exclusive,” we hold that payment of the cost of relocation *222of the utility facilities cannot be made from the motor vehicle fund. Such an expenditure would not be “exclusively for highway purposes.”

The respondents could choose not to salvage the facilities currently on the interstate highway right of way, and elect to abandon the facilities at the location in question. Removal cost of the abandoned facilities (exclusive of relocation) could conceivably be an expense incident to the proper construction of the highway, to the same extent as would be the cost of removal of a tree or a hill. Whether the state could collect its cost for such removal from the owner of the facility is not within the pleadings or admitted facts, and we do not reach that issue.

Respondents contend that, by the passage of chapter 330, Laws of 1959, the legislature has defined the meaning and scope of “exclusively for highway purposes” to include the cost of relocation of the facilities, and that there is a presumption this legislative enactment is constitutional.

The constitution does not grant to the legislature the power or authority to define, by legislative enactment, the meaning and scope of a constitutional provision. Nor does the Eighteenth Amendment, which refers directly to this subject, grant such authority to the legislature. The clause, “Such highway purposes shall be construed to include the following,” is language requiring judicial construction as to its meaning and scope. Automobile Club of Washington v. Seattle, supra. The construction of the meaning and scope of a constitutional provision is exclusively a judicial function. Art. 4, § 1, of the constitution, provides that “The judicial power of the state shall be vested in a supreme court, superior courts, justices of the peace, and such inferior courts as the legislature may provide.”

The legislature has no constitutional power to define the meaning and scope of a constitutional provision. The presumption that a legislative enactment is constitutional is overcome, where, as here, there is no constitutional provision to support it.

Respondents next contend that payment of the cost of relocation of facilities by the state from funds other than *223the motor vehicle fund is constitutional because (a) the act constitutes “a reasonable exercise of the police power,” and (b) “prescribes in advance the terms upon which the Legislature will engage in a program of public improvements.”

What is within the purview of a proper exercise of police power was defined in Shea v. Olson, 185 Wash. 143, 53 P. (2d) 615, 111 A. L. R. 998 (1936), as follows [p. 153],:

“However difficult it may be to give a precise or satisfactory definition of ‘police power,’ there is no doubt that the state, in the exercise of such power, may prescribe laws tending to promote the health, peace, morals, education, good order and welfare of the people. Police power is an attribute of sovereignty, an essential element of the power to govern, and a function that cannot be surrendered. It exists without express declaration, and the only limitation upon it is that it must reasonably tend to correct some evil or promote some interest of the state, and not violate any direct or positive mandate of the constitution. [Citing cases.]” (Italics ours.)

Accord, Ragan v. Seattle, 58 Wn. (2d) 779, 364 P. (2d) 916 (1961), and cases cited.

We are not here concerned with respondents’ contentions (a) and (b), if chapter 330, Laws of 1959, is repugnant to “any direct or positive mandate of the constitution.” We have herein decided that the expenditure, if paid from the motor vehicle fund, is repugnant to amendment 18 of the constitution. Would payment from the state’s general fund be repugnant to the constitution?

Art. 8, § 5, of the state constitution, provides:

“The credit of the state shall not, in any manner be given or loaned to, or in aid of, any individual, association, company or corporation.”

Does the prohibition against giving or loaning the credit of the state to any individual, association, company or corporation encompass a gift or grant thereto? In State v. Guaranty Trust Co. of Yakima, 20 Wn. (2d) 588, 148 P. (2d) 323 (1944), a grant of state funds to persons not in need was declared to be a gift of the credit of the state and repugnant to the above-quoted section of the constitution. *224Legislative acts giving public funds or credit of the state to individuals, associations, companies or corporations are clearly within the prohibition of the constitution.

In the instant case, all of the attributes of a gift are present. The general fund of the state would be decreased by the gift, and the recipients thereby gratuitously benefited.

We conclude that payment by the state of the cost of relocating the utility facilities is not a proper exercise of the police power, in that it violates the direct and positive mandates of amendment 18 and Art. 8, § 5, of the state constitution.

Finally, respondents contend that, assuming that the payment did constitute a gift, such a gift by the legislature is within the purview of the constitution for the reason that the expenditure is in furtherance of a public purpose.

The utility companies here in question perform a public service, and are subject to state regulation. The performance of such service does not constitute a state purpose for the reason that the facilities are owned and operated by entities other than the sovereign state of Washington. State Highway Comm. v. Southern Union Gas Co., 65 N. M. 84, 332 P. (2d) 1007, 75 A. L. R. (2d) 408 (1958); Cincinnati v. Harth, 101 Ohio St. 344, 128 N. E. 263, 13 A. L. R. 308 (1920). The general fund of the state cannot be constitutionally appropriated by the legislature to pay the operating cost of a separate entity, simply because it is engaged in performing a public service. Art. 8, § 5, of the constitution, prohibits the legislature from appropriating public funds to pay the respondents’ expenditures here in question.

We have carefully considered the cases cited from other jurisdictions which, for various reasons, have adopted a contrary view. The cited provisions of the constitution of this state require the construction herein expressed. The following jurisdictions, having similar constitutional provisions, are in harmony with our interpretation: State ex rel. Rich v. Idaho Power Co., 81 Idaho 487, 346 P. (2d) 596 (1959); State v. Southern Bell Tel. & Tel. Co., 204 Tenn. 207, 319 S. W. (2d) 90 (1958); Mulkey v. Quillian, 213 Ga. *225507, 100 S. E. (2d) 268 (1957); Opinion of the Justices, 152 Me. 449, 132 A. (2d) 440 (1957); Southern Bell Tel. & Tel. Co. v. Commonwealth (Ky.) 266 S. W. (2d) 308 (1954).

For the reasons stated, we hold that chapter 330, Laws of 1959, is unconstitutional.

The judgments are reversed, and the causes remanded with instructions to enter judgments in accordance with the views herein expressed.

Mallery, Hill, Donworth, Weaver, Rosellini, and Foster, JJ., concur.