CITIES AND TOWNS ‑- FIRST CLASS ‑- LEGISLATURE ‑- POWER OF FIRST CLASS CITIES TO PERFORM VARIOUS HUMAN RESOURCE FUNCTIONS
Subject to constitutional or stautory limitations, cities of the first class may, by appropriate action of their own legislative authorities, engage in certain "human resource functions" such as would be provided for by Substitute House Bill No. 1455.
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July 30, 1974
Honorable George Fleming
State Senator, 37th District
1100 Lake Washington Blvd. South
Seattle, Washington 98144 Cite as: AGLO 1974 No. 74
This is written in response to your recent letter inquiring as to the necessity for passage of a bill such as Substitute House Bill No. 1455 in order to permit first class cities to engage in certain designated municipal programs listed therein ‑ programs generally falling under the heading of "human resource functions." Specifically you have asked:
"1. Assuming that the charter of a first class city does not specifically authorize or prohibit the activities, functions, and programs proposed by section 1 of SHB 1455, can the first class charter city perform or engage in each such activity, function, and program without specific statutory authority therefor?
"2. If specific statutory authority is required (per question 1), would the enactment of SHB 1455 provide legally adquate [[adequate]]authority for the performance of such activities, functions, and programs if the city's charter does not specifically authorize or prohibit the same?
"3. Must the charter of the first class charter city specifically authorize such activities, functions, and programs before they may be legally undertaken?"
We respond to these questions in the manner set forth in our analysis.
[[Orig. Op. Page 2]]
As a general principle, municipal corporations only have those powers that have been granted to them by the legislature or the state constitution, either expressly or by necessary implication. See, e.g., Lauterbach v. Centralia, 49 Wn.2d 550, 304 P.2d 656 (1956); and Town of Othello v. Harder, 46 Wn.2d 747, 284 P.2d 1099 (1955). In the case of first class cities, however, a different rule, commonly referred to as the "Winkenwerder rule" applies. As explained by the Washington State Supreme Court in Winkenwerder v. City of Yakima, 52 Wn.2d 617, 622, 328 P.2d 873 (1958),
". . . the only limitation on the power of cities of the first class is that their action cannot contravene any constitutional provision or any legislative enactment. . . . a city of the first class has as broad legislative powers as the state, except when restricted by enactments of the state legislature."
In addition, by reason of certain provisions contained in the state's new optional municipal code (Title 35A RCW), these same principles are now applicable to other, smaller cities as well ‑ to the extent that those cities have reorganized themselves as either charter or noncharter code cities under the provisions of that law. See, AGO 1974 No. 2 [[to Municipal Research Council on January 18, 1974]]and AGO 1972 No. 24 [[to Municipal Research Council on October 25, 1972]], copies enclosed. Likewise, under Amendment 40 to the state constitution, cities with a population of ten thousand or more, although not denominated "first class" cities, can also frame their own charters even without reorganizing under the code.
What this means, then, is that insofar as their authority is concerned, the passage of a bill such as Substitute House Bill No. 1455 is not necessary in order to supply the requisite power for either a charter or a code city to engage in such "human resource" type programs as are enumerated in that bill. In the case of those classes of cities, the basic function of legislation, instead, is that of limiting or restricting their powers rather than adding to them.
It does not follow from this, however, that either a charter city or a code city is totally free of any legal restraint in engaging in such programs. First, of course, consistent with the Winkenwerder rule, supra, there must be some form of affirmative authorization from the legislative authority of the city itself in order to permit it to engage in any such programs. This is not to say that the city charter [[Orig. Op. Page 3]] must authorize those programs; but it is to say that there must be some appropriate authorization from the city council or other city legislative authority itself ‑ in place of such authorization as would otherwise be required to come from the state legislature.
Secondly, it must not be overlooked that, as also explained by the court in the Winkenwerder case, the actions of a charter city (and thus, likewise, a code city) cannot be in conflict with any state statutory or constitutional limitations. One particular constitutional limitation which obviously comes into play in considering the legality of any of the types of programs that are listed in Substitute House Bill No. 1455 is Article VIII, § 7, which provides that:
"No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation."
This constitutional provision has been consistently interpreted by our supreme court as a prohibition against gifts of funds by counties and other municipal corporations to private associations, regardless of the purpose of such gifts. One of the earliest cases on this subject was Johns v. Wadsworth, 80 Wash. 352, 141 Pac. 892 (1914), which dealt with the constitutionality of a statute expressly authorizing gifts of county funds to private nonprofit associations for the operation of fairs. While the court in that case recognized the educational value and worthy purpose of such fairs, it concluded, nevertheless, that Article VIII, § 7, supra, prohibits any gifts of county funds to a private entity for any purpose other than those listed in the exception clause dealing with ". . . the necessary support of the poor and infirm, . . ." See, also, State ex rel. O'Connell v. Port of Seattle, 65 Wn.2d 801, 399 P.2d 623 (1965), and State ex rel. O'Connell v. Klickitat PUD, 79 Wn.2d 237, 484 P.2d 393 (1971), in which the same principle has more recently been applied. And, of course, it is axiomatic that to the extent a city's "human resources" activities might, on the basis of the facts involved in a particular program, arguably be in conflict with this constitutional provision, no mere authorization from the state legislature will be sufficient to overcome that legal barrier. Instead, only by the adoption of an amendment to the [[Orig. Op. Page 4]] constitution itself could the way be cleared for those programs which would presently be in violation thereof.
It is hoped that the foregoing explanation of the powers of a first class charter city, and of the limitations thereon, will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General