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AGO 1953 No. 466 - January 21, 1953
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Don Eastvold | 1953-1956 | Attorney General of Washington

SEWER DISTRICTS ‑- FIRE DISTRICTS ‑- OUTGOING COMMISSIONERS ‑- AUTHORITY TO SELL LAND.

Sewer and fire district commissioners do not have authority to sell real property of the district which is necessary for the continued operation of the district.  An action to quiet title is not necessary to set aside such transaction because it is void ab initio.

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                                                                 January 21, 1953 

Mr. John C. Merkel
Prosecuting Attorney
Kitsap County
307 Dietz Building
Bremerton, Washington                                                                                                              Cite as:  AGO 51-53 No. 466

 Dear Sir:

             We acknowledge receipt of your letter of January 13, 1953, in which you request an opinion on whether outgoing sewer and fire district commissioners have authority to sell land of the district which is necessary for its continued operation, and if they do not have such authority, whether an action to quiet title is necessary to set aside such a sale.

             Our conclusion may be summarized as follows:

             Sewer and fire district commissioners do not have authority to sell real property of the district which is necessary for the continued operation of the district.  An action to quiet title is not necessary to set aside such transaction because it is voidab initio.

                                                                      ANALYSIS

             The authorities are in harmony in recognizing that officers of municipal corporations can exercise no authority that has not clearly been delegated to them by statute.  37 Am.Jur. 855 (Municipal Corporations § 224) states that  [[Orig. Op. Page 2]] officers having "superintendence and control of sewers," and commissioners under the commission form of government are municipal officers.  Thus, county commissioners and sewer commissioners both may be classed as officers of municipal corporations.  It follows that rules of law which apply to one when acting in a corporate capacity should likewise apply to the other, unless some statute specifies a distinction.

             In view of the similarities noted above, we feel that it is not improper to quote from Sasse v. King County, 196 Wash. 242, 82 P. (2d) 536, wherein the court recognizes a limitation upon the authority of county commissioners, as follows:

             "Boards of county commissioners have only such powers as have been granted to them, expressly or by necessary implication, by the constitution and statutes of the state, and when the board goes beyond the scope of its authority its acts are void and not binding upon the county."  (Citing numerous cases).

             To the same effect see:

            Commercial Waterway District No. 1 of King County v. King County, 197 Wash. 441, 85 P. (2d) 1067; Raynor v. King County, 2 Wn. (2d) 199, 97 P. (2d) 696;State ex rel. Becker v. Wiley, 16 Wn. (2d) 340, 133 P. (2d) 507, and cases cited.

            That this same limitation applies to sewer districts is recognized in the following quotation from 17 Am.Jur. 789 (Drains and Sewers, § 18):

             "* * * the authorities agree that it (the sewer district) can exercise no authority that has not been clearly granted it by the legislature."

            These authorities should not be construed to mean that municipal officers can never dispose of real property of the corporation without express legislative authority.  The rule is correctly stated in 10 McQuillin on Municipal Corporations (3rd Ed.) § 28.38, amply supported by citations in the footnotes, as follows:

             "Property devoted to a public use cannot be sold or leased without special statutory authority, although property which has ceased to be used or is not used by the public may be sold or leased as the public welfare may require."

             [[Orig. Op. Page 3]]

            The supreme court in this state has stated the rule even more broadly.  InCarpenter v. Okanogan County, 163 Wash. 18, 299 Pac. 400, the court said:

             "It is elementary that counties derive such powers as they possess, not from special charter, but from general laws, * * *.  They are incapable of acquiring or holding real property except for public purposes, and such property, once acquired and devoted to a public use, can not be alienated without legislative authority, either express or implied."

             We are unable to find where sewer district commissioners at any time during their term of office, have any authority whatsoever, either express or implied, to dispose of property necessary to the continued operation of the district.  In conformity with the authorities cited in this opinion, we must advise that the commissioners actedultra vires in attempting to sell this property, and therefore the contract of sale and any deed pursuant to such contract is null and void.

             Since the conveyance is void and not merely voidable, an action to quiet title is not necessary to set aside the transaction.  However, such an action would be proper for the purpose of removing the cloud cast upon this title by the recordation of the void deed, since its invalidity would not be apparent on its face.

 Very truly yours,
DON EASTVOLD
Attorney General 

WILLIAM C. HALLIN
Assistant Attorney General

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