THE CITY OF TACOMA, Appellant, v. THE TAXPAYERS OF THE CITY OF TACOMA, ET AL, Respondents, THE CITY OF SEATTLE, Appellant.
No. 51817-3
En Banc.
August 27, 1987.
108 Wn.2d 679
In sum, Bellevue Associates has not proven error “which is so fundamental as to necessitate a nullification of the entire LID“. Abbenhaus, at 859. The assessments were not shown to be premised on a fundamentally wrong basis. Given the strong presumptions in favor of the propriety of the assessments and Bellevue Associates’ failure to prove otherwise, the assessments against the property of Bellevue Associates are affirmed.
PEARSON, C.J., UTTER, BRACHTENBACH, DOLLIVER, ANDERSEN, CALLOW, and DURHAM, JJ., and HAMILTON, J. Pro Tem., concur.
Johnson, Lane & Crawford, by Joanne Henry, for respondent Taxpayers.
Cartano, Botzer, Larson & Birkholz, by J. Jeffrey Dudley and Thomas C. Armitage, for respondent Washington Natural Gas Co.
UTTER, J.—The City of Tacoma appeals a trial court‘s declaratory judgment invalidating Tacoma‘s electrical energy conservation ordinance. The ordinance authorizes Tacoma‘s municipally owned utility сompany, Tacoma City Light, to issue electric revenue bonds and use other funds to invest in energy conservation measures installed in privately owned, electrically heated, residential and commercial structures located within the utility‘s service area. Although the trial court found Tacoma‘s conservation program authorized by
I
On May 17, 1984, the City of Tacoma, as plaintiff, filed a declaratory judgment action to determine the constitutional and statutory validity of its conservation ordinance (ordinance 23165). In addition to filing the action, Tacoma obtained orders appointing both a representative and an attorney for the taxpayers of the City of Tacoma (Tacoma Taxpayers). In June, the court entered orders permitting Public Utility District 2 of Grant County to intervene as a party plaintiff and the City of Seattle to intervene as a plaintiff-intervenor. In December, the court issued an order рermitting Washington Natural Gas Company (WNG) to intervene as a defendant-intervenor, but the court restricted WNG‘s intervention to the issues raised by the pleadings of the existing parties.
The record compiled during a 3-week trial reveals that Tacoma and Seattle each own and operate an electrical utility, which serves residential and commercial customers both within and without city limits. At the present time, however, both cities are unable to meet present electricity demands, much less future load growth, and must purchase a portion of the electricity they require from the Bonneville Power Administration (BPA). Both cities have made legislative policy determinations to own or control the electric generating resources used to supply the needs of their electrical utility and its ratepayers, thereby reducing their reliance on purchased power.
For the last half century, hydroelectric projects, which utilize energy from falling waters, have been the prevailing method of producing electricity in the Pacific Northwest. Because of environmental concerns, Indian treaty rights, and the near exhaustion of available sites, significant hydroelectric resources are not available for development to
Tacoma and Seattle have adopted conservation programs as a consequence of legislative determinations that these programs will result in their utilities’ acquisition of electricity by conservation. Section 4 of Tacoma‘s ordinance characterizes its conservation program as the “purchase [of] electrical energy produced as a result of the implementation of the plan and system of energy conservation adopted [by the ordinance].” Exhibit 8. The Tacoma ordinance requires participаting ratepayers to (1) submit to an energy audit; (2) have installed only city-approved conservation measures by a city-approved contractor; and (3) before payment is received, have the installed measures inspected by Tacoma. The measure of payment is the cost of the conservation measures or an amount equal to 29.2 cents
At the conclusion of a 3-week trial, the trial court found the purchase of conservation equivalent to the purchase of electricity or of a generating facility, and thus authorized by the municipal utility statute,
WNG appealed to Division Two of the Court of Appeals, challenging the trial court‘s holding that Tacoma had statutory authority to enact a conservation program pursuant to
At oral argument it became apparent that WNG did not have standing to bring its appeal. Only an “aggrieved pаrty” may seek review of a trial court decision. RAP 3.1. At trial, the court rejected WNG‘s statutory authority challenge to Tacoma‘s conservation program, but did agree with WNG‘s contention that the program constituted an unconstitutional gift. On appeal, WNG asks this court to affirm the declaration of invalidity, but on statutory authority grounds, rather than as an unconstitutional gift. Because WNG merely objects to the reasoning by which the trial court invalidated the ordinance, WNG cannot be considered “aggrieved“, and therefore does not have standing to appeal. In re Estate of Lyman, 7 Wn. App. 945, 953-54, 503 P.2d 1127 (1972), aff‘d, 82 Wn.2d 693, 512 P.2d 1093 (1973). However, because Tacoma and Seattle brought a cross appeal, we regard WNG as a respondent along with Tacoma Taxpayers.
Although considered a respondent, rather than an appellant, WNG may nevertheless assign error to trial court findings, Burt v. Heikkala, 44 Wn.2d 52, 54, 265 P.2d 280 (1954), and may offer additional reasons in support of the judgment, even if the trial court rejected such reasoning. Peterson v. Hagan, 56 Wn.2d 48, 351 P.2d 127 (1960). We have therefore considered WNG‘s contention, unsupported by co-respondent Tacoma Taxpayers, that the trial court erred in finding the conservation program within Tacoma‘s statutory authority. Thus, the parties raise two issues: (1) whether the municipal utility enabling statute,
III
As “creatures of statute,” municipal corporations possess
WNG challenges the trial court‘s conclusion, asserting that municipalities may not undertake conservation programs unless such programs constitute loan financing as authorized under
A
The Washington Constitution prohibits gifts or loans of public money, except for the necessary support of the poor or infirm.
Tacoma‘s conservation program does not purport to be a loan financing program authorized by
In 1979, the Legislature submitted amendment 70 to the People in the belief that article 8, section 7 prohibited the use of municipal utility funds for conservation grants or loans. See Substitute Senate Joint Resolution 120. The Legislature reached this conclusion by relying on an Attorney General opinion, which predicted that this court would hold article 8, section 7 prohibited municipal utility conservation loans or grants. AGLO 4 (1979). As a result, the People were also informed that the constitution prohibited municipal utilities from giving funds or extending credit to ratepayers for conservation purposes. Voters Pamphlet 16 (1979). Soon after ratification, we explicitly recognized that the Legislature proposed amendment 70, and the People ratified it, for the limited purpose of carving out an exception to the lending of credit prohibition in anticipation that this court would hold public utility energy conservation loans as violative of article 8, section 7. State Health Care Facilities Auth. v. Ray, 93 Wn.2d 108, 115, 605 P.2d 1260 (1980).
Contrary to WNG‘s assertion, legislative history does not demonstrate that the Legislature considered expenditure of utility funds for conservation without payback as violative of article 8, section 7. The Legislature acted in anticipation of what this court would do, not on the basis of its own independent determination as to the constitutionality of direct purchase conservation. Moreover, whether expenditure of municipal utility funds for conservation without payback requirements violates the constitution is a question for this court to decide, not for the Legislature or the Attorney General. As we have repeatedly recognized, the judiciary has the exclusive function of determining the constitution‘s meaning, and the Legislature cannot define what is and is not a proscribed gift or loan under the state constitution. Scott Paper Co. v. Anacortes, 90 Wn.2d 19, 33, 578 P.2d 1292 (1978).
Much has changed since the Legislature predicated its actions on a prediction of this court‘s attitude toward the
WNG argues further that the comprehensive scheme set down in
We аlso reject WNG‘s invocation of a basic rule of statutory construction, requiring a specific statute to control a statute of general application. See, e.g., Sim v. State Parks & Rec. Comm‘n, 90 Wn.2d 378, 382, 583 P.2d 1193 (1978). According to WNG, section .360 precludes section .050 from authorizing Tacoma‘s admittedly inconsistent program because section .360 sets forth a specific, comprehensive scheme governing conservation financial assistance to ratepayers, while section .050 is nothing more than a general grant of authority. However, this court gives preference to a more specific statute only if the two statutes deal with the same subject matter and they have an apparent conflict. In re Estate of Little, 106 Wn.2d 269, 284, 721 P.2d 950 (1986). Moreover, we have often recognized our responsibility to harmonize statutes if at all possible, so that each may be given effect. See, e.g., In re Mayner, 107 Wn.2d 512, 522, 730 P.2d 1321 (1986).
Here, as the trial court concluded, no conflict exists between
We recognize that in construing the various provisions of
In sum, the People ratified amendment 70, and the Legislature enacted
B
As a municipal corporation, Tacoma‘s authority is limited to those powers expressly granted and to powers
necessarily or fairly implied in or incident to the powers expressly granted, and also those essential to the declared objects and purposes of the corporation. ... If there is a doubt as to whether the power is granted, it must be denied.
Port of Seattle v. State Utils. & Transp. Comm‘n, 92 Wn.2d 789, 794-95, 597 P.2d 383 (1979); 1 J. Dillon, Municipal Corporations § 237 (5th ed. 1911). As Judge Dillon recognized in formulating the above rule, the rule of strict construction does not apply to the mode or means a municipal corporation uses to carry out its grant of power. 1 J. Dillon § 239. In
A city or town may also construct, condemn and purchase, purchase, acquire, add to, alter, maintain and operate works, plants, facilities for the purpose of furnishing the city or town and its inhabitants, and any other persons, with gas, electricity, and other means of power and facilities for lighting, heating, fuel, and power purposes, public and private, with full authority to regulate and control the use, distribution, and price thereof ...; authorize the construction of such plant or plants
by others ... and purchase ... electricity, or power from either within or without the city or town for its own use and for the purpose of selling to its inhabitants and to other persons doing business within the city or town and regulate and control the use and price thereof.
The trial court held that
Like other state supreme courts, we have historically taken different approaches to construing municipal powers according to whether the power exercised is governmental or proprietary in nature. See, e.g., PUD 1 v. Newport, 38 Wn.2d 221, 227, 228 P.2d 766 (1951); 2 E. McQuillin,
Of course, Tacoma‘s municipal utility authority has limits. In exercising its proprietary power, Tacoma may not act beyond the purposes of the statutory grant of power, State ex rel. PUD 1 v. Wylie, 28 Wn.2d 113, 182 P.2d 706 (1947), or contrary to express statutory or constitutional limitations. Metropolitan Seattle v. Seattle, 57 Wn.2d 446, 459-60, 357 P.2d 863 (1960); 12 E. McQuillin § 35.35. Thus, if municipal utility actions come within the purpose and object of the enabling statute and no express limitations apply, this court leaves the choice of means used in operating the utility to the discretion of municipal authorities. We limit judicial review of municipal utility choices to whether the particular contract or action was arbitrary or capricious, see, e.g., State ex rel. PUD 1 v. Schwab, 40 Wn.2d 814, 829-31, 246 P.2d 1081 (1952), or unreasonable, see, e.g., McCormacks, Inc. v. Tacoma, 170 Wash. 103, 107, 15 P.2d 688 (1932).
The record abundantly demonstrates the wisdom of Tacoma‘s decision to pursue conservation as an electric power resource.10 Consequently,
The record developed through a 3-week trial amply established the close nexus between the legislative purpose and Tacoma‘s conservation program. See findings of fact 7-12, 22-25, 28; Clerk‘s Papers, at 317-21. Installation of conservation measures frees up electricity supplies for sale to other customers, thereby furthering the efficient provision of low cost energy and providing for future needs. Moreover, because of the heavy environmental and financial costs of thermal generating resources (i.e., nuclear and coal powered plants), municipal utilities must be allowed to pursue conservation, a resource that offers the cheapest and
to control and operate Sea-Tac Airport. We rejected the Port‘s contention, holding that an airporter service business was neither implied in, nor within the purposes of, the legislative grant of authority contained in
WNG asserts that Tacoma‘s conservation program is unauthorized because it does not produce any power for use or resale. This argument contradicts the views of utility professionals, the Congress, the Bonneville Power Administration, the Regional Council, and the Legislature. See findings of fact 22-23; Clerk‘s Papers, at 319-20. Today, the almost universally held view is that
[a] kilowatt-hour saved from existing demand is as fully a source of new supply as another kilowatt-hour generated from the utility‘s next planned new plant. In both cases the utility makes available to the entire customer system a kilowatt-hour that was previously unavailable.
Schroeder & Miller, The Validity of Utility Conservation Programs According to Generally Accepted Regulatory Principles, 3 Solar L. Rep. 967, 1008 (1982). The Legislature implicitly reached the same conclusion by enacting
We also reject WNG‘s contention that this court adopted an absolute literal approach to the scope of authority granted by
To reach its conclusion, the Chemical Bank I court did not resort to maxims of statutory construction requiring literal interpretation of statutory terms. Instead, the inquiry focused on what utility actions “qualified” as the purchase of electricity, Chemical Bank I, at 784, and what measure of control would be the “equivalent” of ownership, Chemical Bank I, at 787. Use of terms like “qualify” and “equivalent” would be inappropriate had the Chemical Bank I court opted for a literal, ordinary meaning approach. Rather, the court concluded that the express proprietary authority to supply residents with electriсity did not include the power to unconditionally guarantee to pay for no electricity. See Chemical Bank I, at 799.
The Chemical Bank I court did, however, apply a strict construction approach to determine if municipal utilities had the implied power to enter into contracts containing these “dry hole” provisions. Chemical Bank I, at 792. The court viewed the issue presented as the power of municipal utilities to avoid statutory protections when incurring indebtedness by way of an unconditional guaranty of repayment. See Chemical Bank I, at 798. Viewing the issue as the power to incur indebtedness to pay for municipal services, the court found it necessary to apply a “more stringent” governmental functions approach used in public indebtedness and taxation cases. Thus, to analyze the implied power issue, the court invoked a strict “legal necessity” test employed when municipalities impose taxes without express authority. Chemical Bank I, at 792 (citing Hillis Homes, Inc. v. Snohomish Cy., 97 Wn.2d 804, 808, 650 P.2d 193 (1982)).
Having characterized the “dry hole” provision as an “elaborate financing arrangement that required the participants to guarantee bond payments irrespective of whether the plant was ever completed“, Chemical Bank I, at 798, it is understandable why the court felt compelled to apply a stricter governmental function approach. When a munici-
By contrast, legislative grants of express proprietary authority do not convey any elements of sovereignty. In most cases exercises of proprietary power are less likely to affect citizens’ substantive rights. Consequently, “courts will not interfere with the manner in which the [proprietary] power is exercised [if it is] exercised in good faith and for a proper municipal purpose.” 3 J. Dillon, Municipal Corporations § 1296, at 2114-15 (5th ed. 1911). In Chemical Bank I, however, the court considered the “dry hole” provision as a financing scheme under which the municipal utilities had no real management control or ownership, but which committed ratepayers to a huge financial risk irrespective of whether the plants produced any electricity. Chemical Bank I, at 798. Because it perceived the issue to be the municipal utility‘s authority to incur аnd unconditionally guarantee indebtedness “based upon general grants of authority to provide services“, Chemical Bank I, at 792, the court applied the more stringent governmental function approach.
Here, however, we find it unnecessary to apply the approach used in Chemical Bank I. Tacoma‘s conservation program has none of the dry hole provision characteristics that triggered the stricter governmental function approach. Unlike the dry hole provisions, the purchase of electricity in the form of conservation is not an elaborate financing arrangement. Payment to the ratepayer specifically depends upon the predicted amount of electricity saved in
Pursuant to
Having resolved the statutory authorization issue in Tacoma‘s favor, we now turn to whether the conservation program constitutes an unconstitutional gift of public funds. Under the relevant constitutional language, a municipality is prohibited from giving any money to or in aid of any individual, association, company or corporation, except for the poor and infirm.
In adopting article 8, section 7, and its counterpart, article 8, section 5,13 the framers intended to prevent the harmful “effects on the public purse of granting public subsidies to private commercial enterprises, primarily railroads.” Marysville v. State, 101 Wn.2d 50, 55, 676 P.2d 989 (1984); see Reich, Lending of Credit Reinterpreted: New Opportunities for Public and Private Sector Cooperation,
Because Tacoma enacted its conservation program pursuant to proprietary authority, we determine whether a gift has occurred by employing our donative intent/consideration analysis. Tacoma‘s program must be presumed constitutionally valid, and the burden of overcoming that presumption lies with those challenging Tacoma‘s authority. State Housing Fin. Comm‘n v. O‘Brien, 100 Wn.2d 491, 495-96, 671 P.2d 247 (1983). To meet their burden, Tacoma Taxpayers and WNG must demonstrate that Tacoma‘s conservation program amounts to “a transfer of property without consideration and with donative intent.” General Tel. Co. v. Bothell, 105 Wn.2d 579, 588, 716 P.2d 879 (1986). We use the donative intent element to determine how closely we scrutinize the sufficiency of the consideration, “the key factor.” Adams v. UW, 106 Wn.2d 312, 327, 722 P.2d 74 (1986). “Unless there is proof of donative intent or a grossly inadequate return, courts do not inquire into the adequacy of consideration.” (Italics ours.) Adams, at 327; see Scott Paper Co. v. Anacortes, 90 Wn.2d 19, 32-33, 578 P.2d 1292 (1978). Absent a showing of donative intent or gross inadequacy, trial courts should only apply a legal sufficiency test, under which a bargained-for act or forbearance is considered sufficient consideration. Adams, at 327.
Adams is dispositive in the case at hand. Here there is no allegation of gross inadequacy and the trial court‘s conclusion that Tacoma lacked donative intent remains unchallenged. Conclusion of law 8; Clerk‘s Papers, at 322. The trial court concluded that the consideration Tacoma bargained for was the electricity saved through the installation of conservation measures. Conclusion of law 9. Under Adams, the trial court should have limited its inquiry to whether the bargained for consideration was legally sufficient. Instead, despite finding that it was within Tacoma‘s legislative authority to determine what measure of cost effectiveness to use, the trial court conducted an in-depth analysis of the statistical assumptions underlying Tacoma‘s program, and compared the relative economic adequacy of the consideration exchanged. Findings of fact 17-21; Clerk‘s Papers, at 318-19. To allow trial courts to delve this deep into the choice of methodology intrudes upon Tacoma‘s power to make its own legislative judgment. As we recognized in Adams, absent donative intent or grossly inadequate consideration, examination of the adequacy of governmental transactions would constitute impermissible interference and “establish a burdensome precedent for future court calendars“. Adams, at 327.
In effeсt, the trial court found that under Tacoma‘s program somewhere between 3,500 and 5,000 kilowatt hours of
Under Tacoma‘s program the amount of payment to the participating ratepayer depends upon the 3,500-5,000 kilowatts of electricity to be saved in the first year after installation. This feature distinguishes Tacoma‘s program from cases where we found insufficient consideration. For example, in one case we invalidated as an unconstitutional gift a port district‘s promotional hosting of potential customers. State ex rel. O‘Connell v. Port of Seattle, 65 Wn.2d 801, 399 P.2d 623 (1965). There, private individuals had no legal obligation and the only public benefit was the potential business that may have resulted from the hosting program. O‘Connell, at 804. As we have seen, no one challenges the fact that the Tacoma program produces savings in the first year. This actual savings also distinguishes this case from others where we expressed the view that a generalized public benefit is not sufficient consideration. See Adams, at 326.
Finally, any benefit received by the private participating ratepayers, in the form of lower utility bills and a small
V
Because we find Tacoma‘s conservation program authorized under
PEARSON, C.J., and BRACHTENBACH, DORE, and DURHAM, JJ., concur.
GOODLOE, J. (dissenting)—The court‘s focus in this appeal is not on the merits of conservation. Indeed, conservation is laudable and should be encouraged. However, our duty is to determine what forms of financial assistance a city may use under existing Washington law to encourage conservation. In order to reach a desired result the majority: (a) ignores controlling constitutional and statutory authority dealing specifically with conservation; (b) rejects basic rules of statutory construction; (c) distorts beyond all recognition the language of a statute enacted in 1890; (d) interprets words in that statute to mean something other
Const. art. 8, § 10 and RCW 35.92.360
Determining the propriety of Tacoma‘s conservation program requires an analysis of
Tacoma‘s conservation program is inconsistent with
Where the language of the constitution is clear, the words used therein should be given their plain meaning. State ex rel. O‘Connell v. PUD 1, 79 Wn.2d 237, 240-41, 484 P.2d 393 (1971); State ex rel. State Capitol Comm‘n v. Lister, 91 Wash. 9, 156 P. 858 (1916).
One exception,
I find it inconceivable that the Legislature intended to condition carefully and limit a municipal corporation‘s authority to make conservation assistance loans but did not intend to place any conditions on its authority to make conservation assistance grants. A fundamental rule of statutory construction is that the express mention of one thing implies the exclusion of the other. Hi-Starr, Inc. v. Liquor Control Bd., 106 Wn.2d 455, 462, 722 P.2d 808 (1986). Here, the enactment of a financial conservation assistance scheme complete on its face, with specific monetary safeguards, denies cities and towns the authority to embark on conservation programs which are inconsistent with
The Tacoma conservation program does not contain the preconditions and safeguards required by
These concerns demonstrate the wisdom of the Legislature in enacting the comprehensive scheme detailed in
The majority places great emphasis on the “[e]xcept where otherwise authorized” language found in
Substitute Senate Joint Resolution (SSJR) 120 is a proposed amendment to the Washington State Constitution which... would allow various governmental entities to use public moneys or credit, as authorized by the Legislature, to finance energy conservation programs. Existing constitutional language does not allow the use of public moneys or credit for such programs, and it is suggested that this impedes the efforts of public utilities to broaden energy conservation and energy efficiency programs.
(Italics mine.) Final Legislative Report 1979, at 178-79.
Prior to the passage of SSJR 120 the Attorney General opined that loaning public money to utility customers to enable them to acquire and install conservation materials would be unconstitutional. See AGLO 4 (1979). The Attorney General‘s letter opinion stated that he did not believe a potential public benefit would make an unconstitutional loan acceptable. AGLO 4 (1979), at 4.
SSJR 120 was submitted to the voters on November 6, 1979. The official ballot titled stated: “Shall municipal utilities be permitted by the constitution to assist owners of residences in financing energy conservation measures until 1990?” Voters Pamphlet 16 (1979). The voters pamphlet represented:
The law as it now exists:
Under the state constitution, municipal corporations such as counties, cities, and public utility districts cannot give or lend, or be authorized by the state legislature to give or lend, any of their funds or credit to assist private homeowners... in financing purchases or services, such as home insulation.
Voters Pamphlet, at 16. The voters ratified SSJR 120.
This history supports the conclusion that
The majority asserts that Tacoma‘s conservation program does not purport to offer financing. Majority opinion, at 691. However, that is what Tacoma‘s program does—the participating consumer receives conservation measures at the municipal utility‘s expense. The majority fails to see the similarities between the use of public funds to purchase conservation and a grant or loan of public funds made pursuant to an authorized conservation financial assistance program. Merely labeling Tacoma‘s program as something other than a conservation financial assistance program does not alter the fact that the Legislature intended
RCW 35.92.050
Because
A city‘s authority to enact a conservation financial assistance program must be found either in an express grant or by necessary implication from such a grant. See Spokane v. J-R Distribs., Inc., 90 Wn.2d 722, 726, 585 P.2d 784 (1978); 2 E. McQuillin, Municipal Corporations § 10.09 (3d ed. 1979). A municipal corporation
is limited in its powers to those necessarily or fairly implied in or incident to the powers expressly granted, and also those essential to the declared objects and purposes of the corporation. . . . If there is a doubt as to whether the power is granted, it must be denied.
(Citations omitted. Italics mine.) Port of Seattle v. State Utils. & Transp. Comm‘n, 92 Wn.2d 789, 794-95, 597 P.2d 383 (1979); accord, Chemical Bank v. WPPSS, 99 Wn.2d 772, 792, 666 P.2d 329 (1983). The majority must ignore controlling constitutional, statutory, and recent common law authority, as well as the above quoted language, to hold that Tacoma‘s conservation program is authorized by
A city or town may also construct, condemn and purchase, purchase, acquire, add to, alter, maintain and operate works, plants, facilities for the purpose of furnishing the city or town and its inhabitants, and any other persons, with gas, electricity, and other means of power and facilities for lighting, heating, fuel, and power purposes, public and private, with full authority to regulate and control the use, distribution, and price thereof, together with the right to handle and sell or lease, any meters, lamps, motors, transformers, and equipment or accessories of any kind, necessary and convenient for the use, distribution, and sale thereof; authorize the construction of such plant or plants by others for the same purpose, and purchase gas, electricity, or power from either within or without the city or town for its own use and for the purpose of selling to its inhabitants and to other persons doing business within the city or town and regulate and control the use and price thereof.
This statute, originally passed in 1890, is general enabling legislation authorizing a city or town to operate a municipal electric utility. It authorizes the purchase or acquisition of electric generating facilities. It also authorizes the purchase of electricity for a city‘s use and for resale to other customers.
Unambiguous words within a statute which are not defined therein should be given their ordinary meaning. King Cy. Coun. v. Public Disclosure Comm‘n, 93 Wn.2d 559, 561, 611 P.2d 1227 (1980). I protest the majority‘s selective rejection of rules of statutory construction which have been developed to aid courts in ascertaining legislative intent. Majority opinion, at 693. However, I realize that the
We recently construed
I realize that some electrical utility professionals view conservation as the “functional equivalent” of purchasing electricity. But this view is by no means universal. For example, Donald Caha, power manager of Tacoma City Light, testified as follows:
Q Now, I believe, Mr. Caha, that you testified that you are responsible for purchasing power for the Tacoma Light Division? A Yes, sir. Q And I take it your Department also constructs or acquires electrical generation facilities? A Yes, that is correct. Q Now, conservation is not the purchase of electricity as you commonly use that term, is it, Mr. Caha? A Yes, that is correct. Q And conservation is not an electric generation facility as you commonly use that term? A That is true.
(Italics mine.) Report of Proceedings vol. 2, at 41.
Undoubtedly, the Legislature was aware of the conflicting opinions of utility professionals when it passed the carefully detailed conservation program described in
The court‘s role is to ascertain the intent of the Legislature. Service Employees, Local 6 v. Superintendent of Pub. Instruction, 104 Wn.2d 344, 348, 705 P.2d 776 (1985). The majority abdicates its responsibility of interpreting
It is not the judiciary‘s role to expand the scope of statutory authority. See
The majority‘s interpretation of
The majority‘s judicial transformation of
DOLLIVER, ANDERSEN, and CALLOW, JJ., concur with GOODLOE, J.
Reconsideration denied November 6, 1987.
[No. 53334-2. En Banc. August 27, 1987.]
In the Matter of the Personal Restraint of TERRY EUGENE MERCER, Respondent, THE STATE OF WASHINGTON, Petitioner.