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December 9, 1970
Honorable Robert C. Bailey
State Senator, 19th District
South Bend, Washington 98586
Cite as: AGLO 1970 No. 156
Dear Senator Bailey:
We acknowledge receipt of your letter dated November 24, 1970, requesting an opinion of this office on the following question:
"Does a city operating under the commission form of government and thus under the laws regulating cities of the second class have the authority to exchange lands which it owns for lands of equal value and owned by a private individual?"
Discussions of questions of this nature generally begin with a statement of the fundamental rule that municipal corporations have only those powers which are expressed in or necessarily implied from statutory language. See, Pacific Etc. Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947).
On the other hand, when a city has been given the power to perform an act, it is generally held to have the power to make any ordinary business contract necessary for the exercise of that power. As a recognized text authority says:
"Where a municipal corporation has, under its charter or the applicable statutes, an express power to contract, it is of course unnecessary to consider whether any implied power exists. Among the general powers [[Orig. Op. Page 2]] ordinarily expressly conferred are the power to sue and be sued; to purchase and hold property for corporate purposes; . . . to sell, lease or otherwise dispose of corporate property; . . . In order to exercise these powers the municipality, of course, must make appropriate contracts; and it may be stated as a general rule that where there is no charter or statutory restriction a municipality may make any contract necessary to enable it to carry out the particular powers expressly conferred. In fact, it has been said that a municipal corporation authorized to do an act has, in respect to it, the power to make all contracts that natural persons could make. . . ." 10 McQuillin, Municipal Corporations, § 2905.
That principle has evidently been recognized by previous opinions of this office dealing with questions pertaining to the disposition of property and acquisition of new property by municipalities. See, for instance, AGO 53-55 No. 301 [[to Prosecuting Attorney, Thurston County on August 17, 1954]]and 55-57 No. 345 [[to Prosecuting Attorney, Skagit County on November 26, 1956]], copies of which are enclosed. As we indicated in those opinions, unless the transaction would violate some statutory provision relating to the disposal or purchase of municipal property, it would be valid. For instance, if there were a statute expressly requiring cities in disposing of real property to call for competitive bids, any negotiated exchange in lieu of that procedure would be invalid. However, our research discloses no legal requirement that a city operating under the commission form of government call for bids when disposing of real property held by it in its business or "proprietary" capacity. See, in this connection, an informal letter of this office to the city attorney of Dayton dated March 10, 1954, a copy of which is enclosed.
A city operating under the commission form of government (and thus operating under laws pertaining to second class cities) has very clear authority to dispose of surplus real property and to acquire other property by ordinary conveyancing methods. See, RCW 35.23.010 and 35.23.440 (22). These statutes are very generally worded and do not purport to limit the manner in which conveyances may be effectuated. The contemplated exchange in this case would seem to be an ordinary business transaction within the meaning of the general rule outlined above.
[[Orig. Op. Page 3]]
As indicated earlier in this opinion, our conclusion is premised on the nature of the city's presently owned property as surplus property held in its ordinary business or proprietary capacity. In our recent telephone conversation you verified that that is in fact the kind of property involved; not park property or other property held in trust pursuant to some restricted grant or under some restrictive statute.
Accordingly, we see no legal obstacle to the contemplated exchange. We trust this information will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Robert F. Hauth
Assistant Attorney General