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AGO 1953 No. 43 - May 15, 1953
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Don Eastvold | 1953-1956 | Attorney General of Washington

HIGHWAY COMMISSION ‑- POWERS & DUTIES ‑- DELEGATION TO DIRECTOR OF HIGHWAYS ‑- MINISTERIAL & QUASI-JUDICIAL FUNCTIONS ‑- PUBLIC OFFICERS. 

The Highway Commission may delegate to the Director of Highways those powers and duties which are ministerial, or those upon which the policies have, by reason of rules and regulations of the Commission, become so crystallized that the exercise of the powers has become ministerial.  But the Commission may not delegate those functions, such as the establishment of policies, which are in their nature quasi-judicial.

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                                                                   May 15, 1953 

Washington State Highway Commission
Transportation Building
Olympia, Washington                                                                                                                Cite as:  AGO 53-55 No. 43

 Attention:  Mr. George B. Simpson

Gentlemen:

             We are in receipt of your letter of April 14, 1953, in which you request our opinion on the question:

             "May the Commission, in formulating its rules authorized by Sections 6 and 7 of the Act [Ch. 247, Laws of 1951], delegate any of its authority, powers, functions or duties to the Director of Highways?"

             Our conclusion may be summarized as follows:

             The Highway Commission may delegate to the Director of Highways those powers and duties which are ministerial, or those upon which the policies have, by reason of rules and regulations of the Commission, become so crystallized that the exercise of the powers has become ministerial.  But the Commission may not delegate those functions, such as the establishment of policies, which  [[Orig. Op. Page 2]] are in their nature quasi-judicial.

                                                                      ANALYSIS

             The rule is well settled that unless a public officer, board or commission, which has been vested with the power to exercise discretion or judgment in behalf of the public, is expressly or impliedly authorized by statute to delegate it to another, the officer or commission must itself exercise the power, and cannot delegate it to a deputy or subordinate.  See Mechem on Public Officers § 567, p. 369, and numerous cases there cited.

             Unless express or implied authority to delegate powers, duties and functions was given to the Highway Commission by the laws creating it, it necessarily follows that quasi-judicial or policy making duties and functions cannot be delegated.  RCW 43.27.100 provides, in part:

             "Powers of commission.  The state highway commission is hereby vested with all powers, authority, functions and duties now vested in or required to be performed by the director of highways or the state department of highways.  Full and complete jurisdiction and authority over the administration of state highways and all matters connected therewith or related thereto is hereby granted the said state highway commission * * *"

             RCW 43.27.110 provides:

             "Exercise of powers‑-Rules and regulations.  On and after July 1, 1951, the state highway commission shall take over, assume and exercise all of the powers, authority and functions and perform all of the duties now vested in or required to be performed by the director of highways and the department of highways.  Thereafter the state highway commission shall assume and exercise full and complete jurisdiction and authority over the administration of the state highways and all matters connected therewith or related thereto as hereinabove set forth in RCW 43.27.100.  The state highway commission shall establish such rules and regulations as may be deemed wise and lay down policies of procedure and generally supervise and control the operation of said functions within the terms of RCW 43.27.070 to 43.27.200, inclusive, and pursuant to  [[Orig. Op. Page 3]] the laws of this state, and the said commission is hereby clothed with all necessary powers to carry out the terms of said sections.  [1951 c 247 § 7]"

            RCW 43.27.130 provides, in part:

             "* * * The commission shall meet at such other times as it deems advisable, but at least once every thirty days, and shall from time to time adopt rules and regulations not inconsistent with the provisions of RCW 43.27.070 to 43.27.200, inclusive, for its own government, and to regulate and discharge its duties, and to exercise its powers under said sections."

             RCW 43.27.150 provides:

             "Director of highways‑-Appointment‑-General duties.  The state highway commission shall select and appoint the director of highways who after appointment shall be an ex officio member of the commission without a vote.  He shall be the chief executive officer of the commission responsible only to it, and shall carry into effect the commission's order and shall be guided by policies laid down by it.  As the executive head, he shall direct all activities and supervise the work of the staff of the department.  [1951 c 247 § 9.]"

             These are the only statutory provisions from which a power to delegate quasi-judicial functions might be implied.  Such a power is certainly not expressly granted by the statutes.  An implication that such a power to delegate was intended might arise from the fact that the Commission was established to function only on a part time basis.  However, such an implication is not, in our opinion, sufficiently strong to allow the Commission to delegate policy making functions to the Director of Highways.  The only effect of such an implication of legislative intent is to allow a somewhat more liberal construction of the type of power or duty that may be delegated.

             We conclude that any implication resulting from the language of the Act, that the Highway Commission's quasi-judicial powers and duties might be delegated is at the most quite vague and speculative.  Therefore it is our opinion that such  [[Orig. Op. Page 4]] powers and duties cannot be delegated.

             This conclusion necessitates a discussion of the distinction between quasi-judicial or policy making functions, on the one hand, and ministerial functions on the other.  Functions which are clearly ministerial in character may unquestionably be delegated, unless the lawexpressly requires the act to be performed by the officer in person.  See 42 Am.Jur. 387 (Public Administrative Law § 73) and cases there cited; Wyman on Administrative Law, p. 207; Mechem on Public Officers § 568 (p. 370).

             The term "quasi judicial" [[quasi-judicial]]has been variously defined.  In general, it refers to acts which are in their nature neither "ministerial" nor "judicial."  It does not refer to acts of courts or other judicial tribunals, but rather, to acts of boards, commissions or officers which are the result of investigation, consideration, and human judgment based upon evidence; acts which involve the exercise of discretion in the determination of some matter before the board, commission or officer.  See 35 Words & Phrases Perm. 638 et seq. and cases cited; Bishop on Noncontract Laws §§ 785, 786; State ex rel. Linden v. Bunge, 192 Wash. 245, 73 P. (2d) 516, 518; 38 C. J. 597, § 72.  Policy making functions are clearly "quasi judicial [[quasi-judicial)."  All functions which clearly involve an exercise of real discretion fall within the definition of "quasi judicial [[quasi-judicial]]."  However, acts which would be quasi-judicial if there were no established rules or standards to guide the execution of the function may become ministerial upon establishment by the proper authority of such rules or standards.  SeeState Tax Comm. v. Katsis, 90 Utah 406, 62 P. (2d) 120, 122.

             The term "ministerial," on the other hand, applies only to functions or duties which are performed in a given situation in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of judgment or discretion upon the propriety of the acts being done.  SeeState Tax Comm. v. Katsis, supra, and cases cited.

             The application of the above definitions to specific situations is in itself a distinct problem.  The lines separating ministerial functions on the one side from quasi-judicial functions on the other, are necessarily indistinct.  SeeMcCullough v. Scott, et al., State Board of Accountancy, (1921) 182 N.C. 865, 109 S.E. 789, 795.  For this reason we will take a few of the statutes which recite the powers, duties and functions of the Highway Commission, and give our opinion whether delegation to the Director of Highways would be permissible under the particular statutes.

              [[Orig. Op. Page 5]]

            RCW 39.08.010 provides that the Commission must require persons with whom public contracts are made to "make, execute and deliver to it a good and sufficient surety bond."  Since discretion may not be exercised in determining whether a bond must be furnished, and since the statute prescribes that the bond is mandatory in all cases of public contracts, the duty of seeing that the bond required by the statute has been furnished is ministerial and may be delegated.  If the statutes nowhere specify the amount of the bond, it will be necessary for the Commission to establish rules and regulations setting forth the mathematical formula or percentage by which the amount of the bond in each case would be determined.  The establishment of such rules would clearly make the duty of determining whether there had been a compliance with the statute a purely ministerial duty.

             On the other hand, statutes such as RCW 47.04.080, which authorizes the Commission to join with another state or subdivision thereof, or with a foreign country or with the federal government for the construction of a bridge or other structure, confer on the Commission a power which is clearly discretionary or quasi-judicial in character.  As such, it may be exercised only by the Commission itself and may not be delegated.  It should be pointed out, however, that the Commission may, and in fact should, act upon recommendations of subordinates.  See 11 Modern L. Rev. 339-340 [[11 Mod. L. R. 339]](Eng., July, 1948); Allingham v. Minister of Agriculture (1948) 1 All E. R. 780 [[All. E.R. 780]]; 42 Am.Jur. 387 et seq. (Pub. Adm. L. § 73) and cases cited.  Similarly, once the Commission has exercised its discretion it may, under proper conditions, delegate to others the performance of a ministerial act evidencing the result of the discretion thus exercised.  School District No. 3 of Town of Adams et al. v. Callahan, Supt. of Public Instruction (1941) 237 Wis. 560, 297 N.W. 407, and cases cited.  If this were not possible, and the Commission was itself required to administer even the most picayune phases of personnel and business management, the primary policy making tasks of the Commission would necessarily suffer.  See Final Report of Atty. Gen. Committee on Administrative Procedure, "Administrative Procedure in Government Agencies," Senate Doc. 8, 77th Congress, 1st Session (1941), p. 20et seq.

             In the request for this opinion, there is set forth a sample problem as to whether the Highway Commission may authorize the Director of Highways to advertise for bids for construction work, open the bids, ascertain who the best bidder is, and award the contract to that bidder, and then execute a contract on behalf of the State of Washington.  The various parts of this question will be segregated and answered in sequence.

              [[Orig. Op. Page 6]]

            It is our opinion that the advertisement for bids may be delegated, provided rules and regulations are established on the manner of, and time or interval between, such advertisements.

             There would, in our opinion, be no objection to a delegation of the power to open the bids and mathematically tabulate them in order of amount.

             It would be possible to establish rules and regulations dictating those factual situations in which a contract might be awarded to the lowest bidder.  If this were done, the power to award the contract could be delegated in all instances in which the lowest bid fell within the established fact pattern.  However, if, for some reason, it should become necessary to award the bid to one other than the lowest bidder, an exercise of real discretion would be involved, and the power to award the contract in that particular case could not be delegated.  In any event, once it is decided as above set forth which bidder is entitled to the contract, the ministerial act of executing the contract on behalf of the State could be delegated.

             We hope that the views expressed in this opinion will assist the Commission in the proper discharge of its many duties and functions.  If at any time there arises a specific question involving any of the statutes governing the activities of the Highway Commission, this office will be pleased to offer our opinion on the application of the general principles discussed herein to the particular statute or question involved.

 Very truly yours,
DON EASTVOLD
Attorney General 

WILLIAM C. HALLIN
Assistant Attorney General

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