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AGO 1956 No. 218 - March 07, 1956
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Don Eastvold | 1953-1956 | Attorney General of Washington

DRAINAGE DISTRICTS.

 County Commissioners have no power to initiate drainage districts except as specifically provided in Title 85 RCW.

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                                                                   March 7, 1956

 Honorable Charles O. Carroll
Prosecuting Attorney
King County
County-City Building
Seattle 4, Washington                                                                                                              Cite as:  AGO 55-57 No. 218

 Attention:  !ttMr. V. D. Bradeson
            Deputy Prosecuting Attorney

Dear Sir:

            This is in response to your letters of January 17 and January 24, 1956.  We are returning herewith all of the items received from you in explanation and clarification of your question, but regret to state that the letters dated January 11 and January 12, mentioned in the first paragraph of your letter of January 17, were never received by this office.

             We understand this to be your question:  Can a county initiate a drainage district in any particular area and assist financially in the cost and expense of the operation thereof?

             Except where county lands are encompassed in the proposed drainage district our answer is the negative.

                                                                      ANALYSIS

             It is the settled law of this state that county commissioners have only such powers as are expressly granted to them or necessarily implied from those  [[Orig. Op. Page 2]] given.  State ex rel. Becker v. Wiley, 16 Wn. (2d) 340; Green v. Okanogan, 60 Wash. 309; Sasse v. King County, 196 Wash. 242.

             The powers of the boards of county commissioners are enumerated in RCW 36.32.120 in the interpretation of which our supreme court has frequently held that the acts of the commissioners demand liberal construction in furtherance of county business.  Subsection 6 of this statute provides that the commissioners shall "have the care of the county property."  Although this section makes the board of county commissioners the conservator of county property and might conceivably authorize construction by the county of improvements which are directly and exclusively related to county property, the grant of power is obviously not so broad as to empower the board to create a drainage district only incidentally related to county property.

             The statutory procedure for the initiation and creation of drainage districts is contained in chapter 85.04 RCW.  RCW 85.04.110 specifically treats of the manner in which public lands shall be subject to the law pertaining to drainage and of diking districts.  The legislature has therein provided that lands of the state and all public corporations are subject to all of the provisions of the diking or drainage law and that such lands shall be treated as though privately owned.

             We must conclude that county lands are subject to the provisions of the statutes authorizing formation of drainage districts and that a board of county commissioners may not initiate the formation of a drainage district under their general grant of powers.

             We do feel, however, that the county commissioners can join in the petition for the formation of a drainage district where county lands are encompassed within the proposed district.  O'Connell v. Baker, 35 Wash. 376.  Such county lands would be subject to assessments in proportion to the benefits thereto, but in no greater proportion than any other lands being benefited by the improvement.  O. W. R. & N. Co. v. Board of Commissioners of Yakima County, 103 Wash. 480.

             We attach an opinion (AGO 53-55 No. 176) [[to State Highway Commission on November 25, 1953]]on assessment of highway lands, and refer you to chapter 79.44 RCW for procedure on assessing other public lands. refer you to RCW chapter 79.44 for procedure on assessing other public lands.

             We realize from reading the files referred to us that it is probably not the desire of the property owners in the areas affected by drainage problems to  [[Orig. Op. Page 3]] form drainage districts under the existing law if for no other reason than from a standpoint of costs.  In order to alleviate their problem by obtaining greater financial assistance either from the county or from the state, it will undoubtedly be necessary to obtain legislative relief.

             We trust the foregoing analysis will prove helpful.

 Very truly yours,
DON EASTVOLD
Attorney General 

HERBERT TIMBLIN
Assistant Attorney General

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