Caminiti v. Boyle ( 1987 )

Dore, J.

(dissenting)—I believe that RCW 79.90.105 violates Const, art. 8, § 5, which prohibits the State from lending credit or giving gifts to private parties. The grant of free use of state tidelands and waterways to private parties to maintain private recreational docks confers no benefit to the State, and constitutes an impermissible gift. I would hold RCW 79.90.105 is therefore unconstitutional, and I would grant the petitioners' writ of mandamus compelling the State not to enforce the statute.

Const, art. 8, § 5 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.

This section has been interpreted to mean that the State cannot either lend credit or give a gift of state funds to a private individual. See, e.g., Adams v. UW, 106 Wn.2d 312, 722 P.2d 74 (1986); State Hwy. Comm'n v. Pacific Northwest Bell Tel. Co., 59 Wn.2d 216, 367 P.2d 605 (1961).

Recently in Adams v. UW, supra, we held that the key factor in constitutional gift analysis is consideration. Clearly, by allowing private individuals to use the land to build docks, the State has transferred a valuable property right. See, e.g., New Whatcom v. Fairhaven Land Co., 24 Wash. 493, 64 P. 735 (1901). The State has not received anything valuable in return, which makes this transfer an impermissible gift.

The respondents contend the State does receive consideration in that the private dock statute promotes a public interest. Namely, new jobs in constructing docks and new access to navigable waters for some private citizens result from RCW 79.90.105. I believe these contentions are unreasoned, unpersuasive, and cannot be the basis of an unconstitutional grant of the people's property, which has up to now been safeguarded and protected by our judicial system.

A statute conferring benefit to private interests is constitutional only in cases in which the benefit is incidental to a public purpose served by the statute. Public Empl. Relations Comm'n v. Kennewick, 99 Wn.2d 832, 664 P.2d 1240 (1983). The benefit to the public in this case is nonexistent; the only benefits arising from this statute go to private individuals. Furthermore, even if a remotely speculative benefit accrues to dock builders, a statute enacted for a public purpose will be held invalid if the property is given to a private person for which the public neither expects nor receives consideration. Ackerley Communications, Inc. v. Seattle, 92 Wn.2d 905, 918, 602 P.2d 1177 (1979), cert. denied, 449 U.S. 804 (1980).

Conclusion

I dissent to the majority's decision. There is no public benefit arising from RCW 79.90.105. It is not disputed that the effect of the statute is to give away, for free, valuable state property. This gift is prohibited by Const. art. 8, § 5, and I would issue a writ of mandamus preventing state officials from implementing a blatantly unconstitutional statute.

Reconsideration denied July 29, 1987.