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AGLO 1974 No. 66 - July 05, 1974
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Slade Gorton | 1969-1980 | Attorney General of Washington

CITIES AND TOWNS ‑- FOURTH CLASS ‑- GARBAGE ‑- ANNEXATION ‑- AUTHORITY OF FOURTH CLASS CITY TO ENGAGE IN GARBAGE COLLECTION

A city of the fourth class is not authorized to engage in garbage collection within an area outside its city limits; and its authority to do so within a recently annexed area is dependent upon compliance with RCW 35.13.280.

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                                                                     July 5, 1974

Honorable P. J. Gallagher
State Representative, 29th District
125 So. 72nd
Tacoma, Washington 98408                                                                                                               Cite as:  AGLO 1974 No. 66

Dear Sir:
 
            This is written in response to your request for our opinion with respect to the legal ability of a fourth class city to engage in garbage collection activities (a) within an area situated outside its city limits and (b) within a recently annexed area which, at the time of annexation, was being served by a private garbage collection company holding a permit from the state utilities and transportation commission.
 
            We respond to this inquiry in the manner set forth in our analysis.
 
                                                                     ANALYSIS
 
            The basic authority of an incorporated city or town to engage in the activity of garbage collection is derived both from a constitutional provision, Article XI, § 11 of the state Constitution relative to municipal police powers,1/ and from an express statute, RCW 35.21.120, which provides as follows:
 
            "Every city and town may by ordinance provide for the establishment of a system of garbage collection and disposal for the entire city or town or for portions thereof, and award contracts for garbage collection and disposal or provide for it under the direction of officials and employees of the city or town."
 
             [[Orig. Op. Page 2]]
            In the exercise of this authority, however, a city or town may not go beyond its own territorial limits.  Accord, Farwell v. Seattle, 43 Wash. 141, 144, 86 Pac. 217 (1906), wherein the rule is stated as follows:
 
            "It is a general principle that a municipal corporation cannot usually exercise its powers beyond its own limits, and if in any case it has authority to do so, it must be derived from some statute which expressly or impliedly permits it.  . . ."
 
            Since such express or implied authority is not contained in either Article XI, § 11, supra, or the above quoted statutory provision, it readily follows, in our opinion, that a fourth class city may not legally extend its garbage collection activities into unincorporated areas located outside of its own city limits.
 
            Insofar as the second part of your question is concerned, the ability of an incorporated city or town to engage in garbage collection activities within a newly annexed area already being served by a private garbage collection company holding a permit from the utilities and transportation commission is specifically covered by the following provisions of RCW 35.13.280:
 
            "The annexation by any city of any territory pursuant to those provisions of chapter 35.10 which relate to the annexation of a third class city or town to a first class city, or pursuant to the provisions of chapters 35.12 or 35.13 RCW shall cancel, as of the effective date of such annexation, any franchise or permit theretofore granted to any person, firm or corporation by the state of Washington, or by the governing body of such annexed territory, authorizing or otherwise permitting the operation of any public transportation, garbage collection and/or disposal or other similar public service business or facility within the limits of the annexed territory, but the holder of any such franchise or permit canceled pursuant to this section shall be forthwith granted by the annexing city a franchise to continue such business within the annexed territory for a term of not less than five years from the date of issuance thereof, and the annexing city, by franchise, permit or public operation, shall not extend similar or competing services to the annexed territory except upon a proper showing of the inability  [[Orig. Op. Page 3]] or refusal of such person, firm or corporation to adequately service said annexed territory at a reasonable price:  Provided, That the provisions of this section shall not preclude the purchase by the annexing city of said franchise, business, or facilities at an agreed or negotiated price, or from acquiring the same by condemnation upon payment of damages, including a reasonable amount for the loss of the franchise or permit.  In the event that any person, firm or corporation whose franchise or permit has been canceled by the terms of this section shall suffer any measurable damages as a result of any annexation pursuant to the provisions of the laws above‑mentioned, such person, firm or corporation shall have a right of action against any city causing such damages."

            It is hoped that the foregoing will be of some assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***
 
1/"Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."

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