Anderson v. O'BRIEN , 84 Wash. 2d 64 ( 1974 )

Utter, J.

— Petitioners, members of the Economic Assistance Authority, seek a writ of mandamus to compel respondent O’Brien, as state treasurer, to sign a warrant issued by that authority to the Kalispel Indian Community. The treasurer, acting on advice of the Attorney General, refused to sign the warrant because of statutory and constitutional questions raised by the proposed disbursement.

The broad question presented by this original proceeding in the Supreme Court is whether, consistent with the Economic Assistance Act of 1972 (RCW 43.31A) and the Washington State Constitution, state funds may be disbursed to a federally recognized Indian tribe for the purpose of developing and constructing an industrial site and building to be leased to private manufacturing firms in order to stimulate job opportunities and reduce unemployment for the tribe.

We hold, first, that the Kalispel tribe is a proper recipient of state funds under the Economic Assistance Act of 1972 and the state constitution, as an entity with wholly public functions; second, that the legislature authorized expenditure of state funds for the purpose of developing and constructing an industrial site and building for lease to private individuals to stimulate job opportunities and reduce unemployment; and, third, that stimulation of job opportunities and reduction of unemployment by this method is a constitutionally permissible means by which to accomplish this objective.

The Kalispel Indian Community is a federally recognized Indian tribe and chartered as a body politic incorporate under the Indian Reorganization Act of 1934, 25 U.S.C. § 477 (1970). In 1970, out of a labor force of 56 in the reservation community, 40 members of the tribe were unemployed and only 16 employed. Twelve of the employed were working on a part-time basis, three on a seasonal basis and one employed full time.

Of the total proposed sum of $300,064 to be disbursed by the authority, $100,064 is a loan and $200,000 is an outright grant. Expenditures within the sum approved by the authority were:

Site preparation ...................... $ 16,100

Water................................ 23,400

Sewer................................ 25,800

Building.............................. 202,940

10 percent contingency and inspection fee 31,824

Total $300,064

The project will involve construction of an industrial building where space will be leased to manufacturing firms. One firm is committed to lease space and the tribe is prepared to negotiate with the second firm. There will be room for expansion and lease to others. Eighteen permanent job positions will be created initially to expand to an eventual 30 permanent positions.

The first issue is whether the Kalispel tribe is a proper recipient of state funds under the Economic Assistance Act of 1972 and the state constitution. RCW 43.31A.070 explicitly provides that: “The authority is authorized to make direct grants and/or loans to political subdivisions of the state and Indian tribes recognized as such by the federal government . . .” The Washington State Constitution does not dictate otherwise.

Article 8, section 5 of the state constitution provides that: “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.” In Rands v. Clarke County, 79 Wash. 152, 157, 139 P. 1090 (1914), we recognized that this constitutional prohibition is not applicable to corporations or entities whose functions are wholly public:

Plainly . . . the framers had in mind individuals, associations, companies and corporations engaged in purely private enterprises, or enterprises only quasi public, not to enterprises carried on by the corporations whose functions are wholly public, such as the Federal or state government, or some branch thereof.

Indian tribes are unique entities which do not fit into neat pigeonholes of the law. Their sovereign characteristics are well recognized. State v. Bertrand, 61 Wn.2d 333, 339, 378 P.2d 427 (1963). The federal government recognizes the right of a tribe to organize for its common welfare. 25 U.S.C. § 476 (1970). These attributes of sovereignty qualify the tribe as an entity with wholly public functions. The selection of the Kalispel tribe as a recipient for assistance in the form of state funds is not prohibited by article 8, section 5.

The second question is whether the items approved by the Economic Assistance Authority for the proposed Kalispel industrial park are authorized under the Economic Assistance Act of 1972. The problem is one of statutory construction. The primary objective of statutory construction is to carry out the intent of the legislature. Amburn v. Daly, 81 Wn.2d 241, 501 P.2d 178 (1972). Where the manifest object of a statute can be ascertained and the statute is susceptible of two constructions, that construction should be given which will carry out the intent of the legislature. Miller v. Paul Revere Life Ins. Co., 81 Wn.2d 302, 501 P.2d 1063 (1972).

The statement of purpose in the act is the primary insight into the intent of the legislature in this case. It states the act’s purpose is to foster economic development by two means — the stimulation of investment and job opportunity. In addition to fostering economic development by these means, the legislature also declared reduction of unemployment to be of major concern to the economic welfare of this state. RCW 43.31A.010.¹ One of the means authorized by the legislature to accomplish these purposes is to make direct grants or loans to government agencies to assist them in financing the cost of “public facilities.” RCW 43.31A.070. The act next requires that public facilities grants and/or loans be used for projects which “will improve the opportunities for the successful maintenance, establishment, or expansion of industrial or commercial plants or will otherwise assist in the creation or retention of long-term economic opportunities.” (RCW 43.31A.080: Projects for which grants or loans may be used — Priority.)

RCW 43.31A.070 authorizes grants or loans to finance the cost of “public facilities.” RCW 43.31A.110(2) then clarifies the use which can be made of public facilities by allowing their use “directly or indirectly for any facility for public purposes, including, but not limited to, sewer or other waste disposal facilities, arterials, bridges, access roads, port facilities, or water distribution and purification facilities.” (Italics ours.) A public facility is, then, “any facility for public purposes,”² and inasmuch as reducing unemployment is a valid public purpose³ and the proposed building for lease will create jobs, the project is a public facility.

The Economic Assistance Authority, which was designated by the legislature to carry out the purpose of the act, has concluded that the expenditure would be appropriate. This raises a strong presumption that, the project would further the public purpose specified in the act and an administrative construction of an ambiguous statute should be given great weight. Deaconess Hosp. v. State Highway Comm’n, 66 Wn.2d 378, 403 P.2d 54 (1965); Bradley v. Department of Labor & Indus., 52 Wn.2d 780, 329 P.2d 196 (1958). In addition, the legislature expressly stated in RCW 43.31A.110 (2) that permissible projects were “not limited to” the enumerated examples.

Even if the phrase “not limited to” is ignored, the inclusion of port facilities as illustrative of the type of public purpose allowable, gives the Economic Assistance Authority broad latitude. The term “port facility” has been given a statutory definition in other states.

Section 315.02(6), Florida Statutes, F.S.A. defines a port facility as follows:

“The term ‘port facilities’ shall mean and shall include harbor, shipping and port facilities and improvements of every kind, nature and description, including (but without limitation) channels, turning basins, jetties, breakwaters, public landings, wharves, docks, markets, parks, recreational facilities, structures, buildings, piers, storage facilities, public buildings and plazas, anchorages, utilities, bridges, tunnels, roads, causeways and any and all property and facilities necessary or useful in connection with the foregoing, and any one or more or any combination thereof and any extension, addition, betterment or improvement of any thereof.”

Bannon v. Port of Palm Beach Dist., 246 So. 2d 737, 738 (Fla. 1971).

This broad definition is within the concept of what “port facilities” actually are. In M. Fair, Port Administration in the United States, ch. 9 (1954), Port Jurisdiction and Supporting Facilities at 122-24, the author discusses warehouses, and notes that “port authorities often have jurisdiction over the several categories of ancillary facilities. Adequate and efficient warehouse facilities are essential to attract trade to the port. . . . Manipulation and even manufacture of goods to be re-exported are permitted at bonded warehouses. . . . Although warehousing facilities should, in general, be privately operated, public ownership of waterfront facilities is sometimes desirable.”

If the use of the term “port facilities” is to describe the type of facility, by analogy, that is allowed to be used for public facilities, the legislature could hardly have chosen a broader term. The ownership of a building by the tribe to be leased to others to manufacture goods and provide employment for the tribe, is completely consistent with a port’s ownership of a warehouse used to manufacture goods by a tenant for reshipment. The economic ripple effect here, providing housing for industry that in turn will stimulate the economy and provide many additional jobs for members of the tribe, is the same as that which occurs in the state at large when a publicly-owned warehouse in a port facility assures increased commercial shipping and its related jobs.

The last question to be disposed of is whether the proposed expenditure of public funds is for a “public purpose” under article 7, section 1 (amendment 14), which states: “All taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax and shall be levied and collected for public purposes only.”

Stimulation of investment and job opportunity for relief of unemployment and poverty are proper public purposes within this constitutional provision. State ex rel. Hamilton v. Martin, 173 Wash. 249, 23 P.2d 1 (1933). Where it is debatable as to whether or not an expenditure is for a public purpose, we will defer to the judgment of the legislature. State ex rel. Reclamation Bd. v. Clausen, 110 Wash. 525, 541, 188 P. 538, 14 A.L.R. 1133 (1920).

We have approved a condemnation of private property to build a public facility for air cargo storage and transfer which would be leased to private industry, recognizing that “[a]s long as the object sought to be accomplished is for a public purpose, it is for the legislature to determine the means to accomplish it.” In re Port of Seattle, 80 Wn. 2d 392, 396, 495 P.2d 327 (1972). We there recognized that the lease of facilities to private enterprises was incidental to the main public purpose. Such is the case here. The reduction of unemployment and alleviation of economic distress for the Kalispel Indian Community is a proper public purpose and the use of private industry to assist government in this task is a permissible legislative choice.

The Economic Assistance Authority was acting within its delegated powers under a constitutional act in approving the proposed expenditure of funds and, therefore, the treasurer is ordered to sign the appropriate warrant.

Finley, Hamilton, Stafford, and Wright, JJ., concur.

Brachtenbach, J., concurs in the result.

1 RCW 43.31A.010:

“Declarations. It is declared to be the public policy of the state of Washington to direct financial resources of this state toward the fostering of economic development through the stimulation of investment and job opportunity in order that the general welfare of the inhabitants of the state is served. The legislature further finds that reducing unemployment as soon as possible is of major concern to the economic welfare of the state.”

2 RCW 43.31A.110 (2).

3 State ex rel. Hamilton v. Martin, 173 Wash. 249, 23 P.2d 1 (1933).