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AGO 1956 No. 275 - May 25, 1956
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Don Eastvold | 1953-1956 | Attorney General of Washington

DRAINAGE DISTRICTS ‑- DRAINAGE DISTRICT COMMISSIONERS, POWERS OF ‑- POWER TO CONTRACT ‑- POWER TO DISPOSE OF DISTRICT PROPERTY FOR OTHER PUBLIC USE

Commissioners of a drainage district organized pursuant to chapter 85.04 RCW have the power to enter into a contract with a sewer district or a city or town which would permit the city or district to drain effluent from its sewage disposal plant into the ditch of the drainage district.

The commissioners of such drainage district may so contract without a vote of the people in the district.

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                                                                   May 25, 1956

Honorable James E. Duree
Prosecuting Attorney
Pacific County
South Bend, Washington                                                                                                              Cite as:  AGO 55-57 No. 275


Dear Sir:

            We are in receipt of your letter requesting the opinion of this office on certain questions which we paraphrase as follows:

            (1) Would a drainage district formed under the provisions of RCW 85.04.005 be authorized to enter into a contract with a city of the fourth class which has set up a sewer system or district to allow the city to place effluent from its sewage disposal plant into the ditch of the drainage district in consideration of the cost of maintaining said ditch?

            (2) Do drainage district commissioners have the power to enter into such a contract without a vote of the people within the drainage district?

            We answer both of your questions in the affirmative.

                                                                     ANALYSIS

             [[Orig. Op. Page 2]]                                                  

            Answering your first question, we note that the pertinent statute, RCW 85.04.045, is derived from § 3, chapter 86, Laws of 1913.  As there is some variance between the code and the session law, we quote from the latter as follows:

            "Said board of drainage commissioners hereinbefore provided for, shall have exclusive charge of the construction and maintenance of all drainage systems which may be constructed by said district and shall be the executive officers thereof, with full power to bind said district by their acts in the performance of their duties as provided by law.  In case of vacancy or vacancies occurring in said board by the death, failure to elect, failure to qualify, resignation or removal of one or more of the members thereof from said district such vacancy or vacancies shall be filled at once from the freeholders and qualified electors of said district by the judge of the superior court of said county, and said appointee shall serve the unexpired term or until the next general election: Provided, That in counties where there may be more than one superior judge, the judge eldest in age shall make such appointment."  (Emphasis supplied.)

            All powers of municipal corporations are held in trust for public use, and all property held by such corporations is held in a fiduciary capacity.  Haesloop v. City Council of Charleston, 115 S.E. 596, 600, 123 S.C. 272.  As a general rule property held by a municipal corporation and devoted to a governmental use may not be disposed of by the municipality.  SeeCommercial Waterway District No. 1 of King County v. King County, 200 Wash. 538, 562.  However, unless restricted by law, a municipal corporation may transfer, donate or dedicate property for particular public uses especially if such purposes are calculated to advance the governmental and municipal interests of the locality.  10 McQuillin on Municipal Corporations, (3rd Ed.) 104, § 28.43.

            The case ofState ex rel. Seaborg v. Superior Court, 116 Wash. 457 holds that a diking district, organized pursuant to statutes which are now codified as RCW chapter 85.04, has the power to grant a county a license to use the top of its dike for a county road.  This the diking district had the power to do by virtue of Rem. Code § 4102 (p. 310, Laws of 1895, § 8 codified with material omissions as RCW 85.04.045) which is in all respects identical to § 3, chapter 86, Laws of 1913, above quoted, except that  [[Orig. Op. Page 3]] its grant of powers extends to diking instead of drainage districts.  The court pointed out that there was a reasonable necessity for the road, and that the use of the dike by the county would not in any way conflict or be inconsistent with the diking district's present or prospective use of the dike.

            In our opinion there is no distinction in principle between the use of the dike for a county road in the Seaborg case and the use of a drainage ditch as an outlet for treated sewage in the instant case.  The grant of power from which the authorization for use by another municipality was inferred in theSeaborg case is identical with the grant of power to this drainage district.  There appears to be reasonable necessity for an outlet for the city's treated sewage, and you have not indicated that the proposed use of the ditch would in any way conflict or be inconsistent with its present use by the drainage district.  On the basis of the authorities we have cited we feel that the drainage district commissioners have the power to enter the proposed contract.

            Answering your second question, the case of Malim v. Benthien, 114 Wash. 533, states at page 539 that the officers of diking and drainage districts organized under the Laws of 1895, chapters 115 and 117, were elected and exercise their powers by reason of the municipal or public character of the corporation they represent.  InSpringer v. Walters, 28 N.E. 761, 139 Ill. 419, the supreme court of Illinois held that where a city had assumed control of a drainage district, persons whose property had been assessed in the formation of the district could not enjoin private use of the district's facilities authorized by the city.  The court said at page 762:

            ". . . The drainage district is not a private corporation.  It is created solely for purposes of local government; and whether it shall be held to be a corporation distinct from that of a city, or only as a district for the exercise of one of the powers vested in the city, its purpose is public, and not private. . . . And it is solely because of the incidental benefits to result therefrom to contiguous owners of real estate that the costs of drainage may be taxed against contiguous real estate by special assessment.  But the owner of real estate has no more legal interest in a public work paid for by special assessments on contiguous property than he has in the same kind of a work when paid for by general taxation; . . ."

             [[Orig. Op. Page 4]]

            On the basis of these cases and the case of State ex rel. Seaborg v. Superior Court, we feel that a vote of the people in the drainage district is not necessary to empower the commissioners thereof to enter the proposed contract.

            We conclude that commissioners of a drainage district organized pursuant to chapter 85.04 RCW have the power to enter into a contract with a sewer district or a city or town which would permit the city or district to drain effluent from its sewage disposal plant into the ditch of the drainage district, and that the commissioners of such a drainage district may so contract without a vote of the people in the district.

            We trust that this opinion will be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General


DUANE S. RADLIFF
Assistant Attorney General

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