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AGO 1962 No. 135 - May 16, 1962
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John J. O'Connell | 1957-1968 | Attorney General of Washington


CITIES AND TOWNS ‑- LOCAL IMPROVEMENTS ‑- RESTRAINED BY PROTESTS ‑- USE OF PUBLIC FUNDS TO PRINT AND CIRCULATE PETITIONS AND EXPLANATORY MATERIAL FOR REINITIATION OF AN IMPROVEMENT.

City officers have no power to expend city funds at any time to print and circulate petitions to reinitiate or to print and circulate explanatory materials urging reinitiation of a local improvement district.

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                                                                   May 16, 1962

Honorable Robert A. Perry
State Representative, 45th District
1154 North 92nd
Seattle 3, Washington

                                                                                                              Cite as:  AGO 61-62 No. 135

Dear Sir:

            By letter, previously acknowledged, you have requested the opinion of this office on a question which we paraphrase as follows:

            Where a proposed local improvement which has been initiated by the city council has been restrained by protest under the provisions of RCW 35.43.180, may officers of the city expend city funds to print and circulate petitions to reinitiate and to print and circulate explanatory material urging the reinitiation of substantially the same improvement within one year of the restraint of the original improvement?

            We answer your question in the negative.

                                                                     ANALYSIS

            The controlling rule to be considered is that powers conferred upon a public officer can be exercised only in the manner, and under the circumstances, prescribed by law, and any attempted exercise thereof in any other manner or under different circumstances is a nullity.  In re Jullin, 23 Wn. (2d) 1, 158 P. (2d) 319, 160 P. (2d) 1023 (1945);In re Elvingen's Estate, 191 Wash. 614, 623, 71 P. (2d) 672 (1937).  The method prescribed by law for a city or town to initiate proceedings toward the formation of a local improvement district, through its own officers, is prescribed by RCW 35.43.140 and 35.43.150.  RCW 35.43.140, provides in pertinent part as follows:

            "Any local improvement to be paid for in whole or in part by the levy and  [[Orig. Op. Page 2]] collection of assessments upon the property within the proposed improvement district may be initiatedby a resolution of the city council or other legislative authority of the city, declaring its intention to order the improvement, setting forth the nature and territorial extent of the improvement and notifying all persons who may desire to object thereto to appear and present their objections at a time to be fixed therein."  (Emphasis supplied.)

            The same statute, and RCW 35.43.150, provide for notice and hearing.  RCW 35.43.180, cited in your letter, provides as follows:

            "The jurisdiction of the legislative authority of a city or town to proceed with any local improvement initiated by resolution shall be divested by a protest filed with the city or town council within thirty days from the date of passage of the ordinance ordering the improvement, signed by the owners of the property within the proposed local improvement district subject to sixty percent or more of the total cost of the improvement including federally-owned or other nonassessable property as shown and determined by the preliminary estimates and assessment roll of the proposed improvement district:  Provided, That such restraint by protest shall not apply to any local improvement by sanitary sewers where the health officer of any city or town shall file with the legislative authority thereof a report showing the necessity for such improvement and such legislative body finds and recites in the ordinance or resolution authorizing the improvement that such improvement is necessary for the protection of the public health and safety and such ordinance or resolution is passed by unanimous vote of all members present."

            On the other hand, the legislature has provided a separate method by which property owners may themselves initiate proceedings toward the formation of a local improvement district; that is, the petition method set forth in RCW 34.43.110 and 34.43.120.

             [[Orig. Op. Page 3]]

            Therefore, in our opinion, it is immaterial for the purposes of this opinion whether the actions of the city officers in attempting to reinitiate substantially the same improvement are performed within one year, or within a greater or less time, after restraint of the original improvement.  In our opinion, they have no power at any time to expend city funds to print and circulate petitions to reinitiate or to print and circulate explanatory materials urging the reinitiation of a local improvement.  The means by which their will is carried out in establishing a local improvement is the resolution method provided by the legislature.

            We trust the foregoing information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General

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