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AGLO 1973 No. 78 - July 23, 1973
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Slade Gorton | 1969-1980 | Attorney General of Washington
A port district, acting either by itself or in concert with two cities within the corporate limits of which port facilities are located, does not have the power to construct a jail facility in which persons arrested for and/or convicted of crimes within the two cities would be confined; it may, however, construct a temporary detention facility on its own property in which persons arrested on port property would be housed until such time as they could be transported to one or the other city jail.
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                                                                    July 23, 1973
Honorable Robert L. Charette
Majority Leader
House of Representatives
P.O. Box 63
Aberdeen, Washington 98520
                                                                                                               Cite as:  AGLO 1973 No. 78
Dear Sir:
            By letter previously acknowledged you have requested an opinion of this office upon certain questions which we paraphrase as follows:
            (1) Does a port district, acting in concert with two cities within the corporate limits of which port facilities are located, have the power to construct a jail facility in which persons arrested for and/or convicted of crimes within the two cities would be confined?
            (2) If question (1) is answered in the negative may the port district, again acting in concert with the two cities, nevertheless construct a temporary detention facility on its own property in which persons arrested on port property would be housed until such time as they could be transported to one or the other city jail?
            (3) If question (2) is answered in the affirmative, may the port district establish within such temporary detention facility a communications center?
            We answer question (1) in the negative, question (2) in the affirmative, and question (3) in the manner set forth in the analysis below.
            At the outset, and before proceeding to a consideration of your specific questions, we think that an understanding of our analysis would be aided by a brief statement of the unique facts which form the background for your inquiry.
             [[Orig. Op. Page 2]]
            The Port of Grays Harbor is a port district encompassing Grays Harbor County; however, the bulk of its physical properties are located within the adjacent cities of Aberdeen and Hoquiam (cities of the first and second class, respectively).  These two cities directly abut upon one another and have a common boundary.  Certain of the port's facilities in the Grays Harbor area are located in each of these cities, "straddling," so to speak this common boundary.  The specific port properties here under consideration are located within one or the other of these two cities.
            Question (1):
            Your first question is whether this port district, acting in concert with the two cities, may construct a jail on port property in which persons arrested for and/or convicted of crimes within either city would be confined.  We have no hesitation in answering this question in the negative.
            There is no question but that either of the two cities could themselves construct a jail facility which, because it would be located within one of them, would necessarily be outside of the other city.  This power has been expressly granted to all cities and towns by RCW 35.21.330, which reads as follows:
            "Cities and towns may acquire, build, operate and maintain jails, workhouses, workshops, stockades and other places of detention and confinement at any place within the territorial limits of the county in which the city or town is situated, as may be selected by the legislative authority of the municipality."  (Emphasis supplied)
            Thus, a jail which might be built by one or the other of the two cities could be located anywhere in the county, although, as a practical matter, it would probably be more convenient to build (or otherwise acquire) such a facility within one or the other of the two cities themselves.  Further, since either of the two cities can build, or otherwise acquire, a jail facility in either city, the two may jointly build or acquire such a facility pursuant to the provisions of the Interlocal Cooperation Act of 1967 (chapter 39.34 RCW).  However, in view of the fact that RCW 39.34.030 restricts any joint action taken under this act to that which could be undertaken individually by each of the municipal corporations or other public agencies involved, the crucial question here is whether the port district itself could also build or otherwise acquire a jail to house city prisoners.  Our research has disclosed no statutory or other authority for a port district to do so.  Accordingly, since port districts are creatures of the legislature and can exercise only those powers which have been conferred upon them by statute or constitutional provision (State ex rel. O'Connell v. Pt. of  [[Orig. Op. Page 3]] Seattle, 65 Wn.2d 801, 399 P.2d 623 (1965)), we must answer your first question, as above paraphrased, in the negative.
            Question (2):
            Your second question assumes this answer and asks whether the port could (again, in concert with the two cities) maintain, on port property, a "temporary detention facility."  By "temporary detention facility," we understand you to mean a facility which would be used to detain and house persons arrested by either the police or by port security personnel on port property for the commission of crimes involving such property until they can be transported to the appropriate city jail.
            By virtue of the doctrine of "implied powers" as described in such cases as Christie v. The Port of Olympia, 27 Wn.2d 534, 179 P.2d 294 (1947), the express power of a port to own and operate port facilities (RCW 53.08.010, et seq.) implies the power to take reasonable steps to protect that property.  See, also, 2 McQuillin, Municipal Corporations, § 10.12 (3rd ed. Rev. 1966 Ellard).  Thus, certainly, the employment of "night watchmen" or similar security personnel to patrol the port's premises, being a reasonable means to protect such premises against vandalism or other crimes, is authorized ‑ with the qualification, of course, that unless such night watchmen are also city police officers or deputy county sheriffs,1/ they would have no greater authority to arrest persons than is possessed by any citizen.  See, State v. Jack, 63 Wn.2d 632, 388 P.2d 566 (1964), cert. den., 379 U.S. 856, 85 S.Ct. 107, 13 L.Ed.2d 59 (1964), reh. den., 380 U.S. 946, 85 S.Ct. 1027, 13 L.Ed.2d 966 (1965).
            As an adjunct of this employment of port security personnel, the availability of a temporary holding facility on port property within which any persons arrested by these personnel could be detained until transported to the appropriate city jail would be patently necessary.  Such a facility could either be newly constructed by the port or it could be developed for this purpose out of space already constructed which is in excess of the port's immediately foreseeable needs.
            Furthermore, since the detection, apprehension and detention of persons suspected of criminal behavior within their respective jurisdictions is plainly also within the authority of the two cities in which port properties are located, and since the maintenance of a temporary detention facility could be accomplished by those cities as well, it also follows that the joint maintenance of such a facility (albeit  [[Orig. Op. Page 4]] on port property) would be a matter which would be quite within the powers of the three municipal corporations here involved to contract for under either the Interlocal Cooperation Act (chapter 39.34 RCW) or RCW 53.08.240, a 1961 statute which provides as follows:
            "Any two or more port districts shall have the power, by mutual agreement, to exercise jointly all powers granted to each individual district, and in the exercise of such powers shall have the right and power to acquire jointly all lands, property, property rights, leases, or easements necessary for their purposes, either entirely within or partly within or partly without or entirely without such districts:  Provided, That any two or more districts so acting jointly, by mutual agreement, shall not acquire any real property or real property rights in any other port district without the consent of such district.
            "A district may enter into any contract with the United States or any state, county, or municipal corporation, or any department of those entities, for carrying out any of the powers that each of the contracting parties may by law exercise separately."
            Question (3):
            Your final question concerns the installation of a communications center in this temporary holding facility.  Certainly, some equipment by the use of which the port district's "night watchmen" out on the piers might communicate (either at periodic intervals or upon their apprehension of a suspect) with a central "switchboard" or supervising watchman at the detention facility would be entirely proper and quite lawful as an adjunct to the "night watchman" program itself.  Likewise, it would also be not only reasonable but probably necessary for some form of communication to exist between the detention facility itself and the police headquarters of the two participating cities.  Again, the requisite power to enter into a joint, cooperative agreement between the three municipal corporations for such a communications network is readily to be found in either the Interlocal Cooperation Act (chapter 39.34 RCW) or RCW 53.08.240.  Any more elaborate communications facility, however, would probably be beyond the powers of the port district to engage in the limited sort of "night watchman" ‑ "temporary detention facility" project discussed in response to your second question ‑ and, again, any powers which are sought to be jointly exercised (either under the Interlocal Cooperation Act or RCW 53.08.240) must be independently possessed by all of the parties to the agreement.
             [[Orig. Op. Page 5]]
            Accordingly, it is our opinion in answer to your final question that the port and the two cities may establish a communications network or facility between themselves only as an adjunct to the "detention" facility as above discussed.  Only to the extent that such a communications facility is designed merely to permit (a) communication between the "night watchmen" and the "detention facility," and (b) communication between the "detention facility" and the police headquarters of the two cities would it be fairly within the port's "implied" powers discussed in response to your second question.
            This completes our consideration of your three specific questions.  Before closing, however, we would note and pass on to you the possibility of an alternative solution, or partial solution, to the problem you have described.  It is our understanding that the particular parcel of port district property on which the proposed facility you have in mind would be constructed may presently not be needed by the port for any particular purpose.  It is therefore conceivable that this property, or a sufficient leasehold interest therein, could be declared surplus and transferred to the two cities pursuant to a court order under RCW 39.33.010, a statute which provides as follows:
            "(1) The state or any municipality or any political subdivision thereof, may sell, transfer, exchange, lease or otherwise dispose of any property, real or personal, or property rights, including but not limited to the title to real property, to the state or any municipality or any political subdivision thereof on such terms and conditions as may be mutually agreed upon by the proper authorities of the state and/or the subdivisions concerned: Provided, That such property is determined by decree of the superior court in the county where such property is located, after publication of notice of hearing is given as fixed and directed by such court, to be either necessary, or surplus or excess to the future foreseeable needs of the state or of such municipality or any political subdivision thereof concerned, which requests authority to transfer such property.
            "(2) This section shall be deemed to provide an alternative method for the doing of the things authorized herein, and shall not be construed as imposing any additional condition upon the exercise of any other powers vested in the state, municipalities or political subdivisions.
             [[Orig. Op. Page 6]]
            "(3) No intergovernmental transfer, lease, or other disposition of property made pursuant to any other provision of law prior to May 23, 1972, shall be construed to be invalid solely because the parties thereto did not comply with the procedures of this section."
            The availability and efficiency of such a solution is, of course, a factual matter to be determined by the parties in question.
            We trust the foregoing will be of assistance to you.
Very truly yours,
Attorney General
Donald Foss, Jr.
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/See, State ex rel. Pitkanen v. Zittel, 77 Wn.2d 366, 462 P.2d 944 (1969), and cases cited therin; 16 McQuillin, Municipal Corporations, § 45.06a (3rd ed. Rev. 1972 Dray).
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