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AGO 1966 No. 114 - October 17, 1966
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John J. O'Connell | 1957-1968 | Attorney General of Washington


MUNICIPAL CORPORATIONS ‑- CITIES AND TOWNS ‑- DISTRICTS ‑- WEED ‑- DUTY OF CITY CONTIGUOUS TO WEED DISTRICT TO CONTROL WEEDS ON PRIVATE PROPERTY ‑- EXPENDITURE OF PUBLIC FUNDS.

(1) A city which is contiguous to a weed district is required by RCW 17.04.160 to provide for the destruction, prevention and extermination of species of weeds designated for control by the weed district pursuant to RCW 17.04.030 on private as well as public property located in such city.

(2) A city is authorized to expend public funds to carry out the duty imposed by RCW 17.04.160.

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                                                                October 17, 1966

Honorable Paul Klasen
Prosecuting Attorney
Grant County Court House
Ephrata, Washington 98823

                                                                                                              Cite as:  AGO 65-66 No. 114

Dear Sir:

            By letter previously acknowledged, you requested the opinion of this office on two questions which we paraphrase as follows:

            (1) Is a city, which is contiguous to a weed district, required by RCW 17.04.160 to provide for the destruction, prevention and extermination of species of weeds designated for control by the weed district as the result of a petition filed pursuant to RCW 17.04.030 where such species of weeds are growing on private property within the city's boundaries?

            (2) If the answer to Question (1) is "yes," what is the authority for a city to use public funds for such purpose?

            We answer Question (1) in the affirmative as qualified in the analysis, and Question (2) in the manner stated in the analysis.

                                                                     ANALYSIS

            In order to provide for the benefit, protection, comfort and health of the public, the destruction or removal of noxious or diseased vegetation growing within a city has been generally  [[Orig. Op. Page 2]] held to be a proper exercise of the police power of a state or municipality.  Greenwood v. City of Lincoln, 156 Neb. 142, 55 N.W.2d 343 (1952); Thain v. City of Palo Alto, 24 Cal.Rptr. 515 (1962).  See, also,Carstens v. De Sellem, 82 Wash. 643, 144 Pac. 934 (1914); Kelleher v. Schoene, 14 F.2d 341 (D.C. Va. 1926) retrialKelleher v. French, 22 F.2d 341; affirmed 278 U.S. 563 (1928); 2Antieau, Municipal Corporation Law § 14.04 (1965).

            By chapter 125, Laws of 1929, (with amendment, now codified in chapter 17.04 RCW) the legislature authorized the establishment of public corporations known as "weed districts."  Such districts may be created

            ". . . for the purpose of destroying, preventing and exterminating, or to prevent the introduction, propagation, cultivation or increase of, any particular weed, weeds or plants, or all weeds or plants, including Scotch broom, which are now or may hereafter be classed by the agricultural experiment station of Washington state university as noxious weeds, or plants detrimental to or destructive of crops, fruit, trees, shrubs, valuable plants, forage, or other agricultural plants or produce. . . ."  RCW 17.04.010.

            One method for determining the species of weeds within a proposed district which shall become the subject of a destruction, prevention or extermination program is for one or more freeholders, owning more than fifty per cent of the acreage desired to be included within the proposed weed district,to file a petition with the board of county commissioners requesting that a specified species of weed or weeds be destroyed, prevented or exterminated.1/   See, RCW 17.04.030.

             [[Orig. Op. Page 3]]

            Question (1):

            You first ask whether a city, which is contiguous to a weed district, is required to provide for the destruction, prevention, and extermination of weeds, designated in a petition, which are growing on privately-owned lands within the city's limits.  We answer in the affirmative.

            The applicable statute is RCW 17.04.160, which provides:

            "Any city or town contiguous to or surrounded by a weed district formed under this chaptershall provide for the destruction, prevention and extermination of all weeds specified in the petition which are within the boundaries of such city or town, in the same manner and to the same extent as is provided for in such surrounding or contiguous weed district; and it shall be the duty of those in charge of school grounds, playgrounds, cemeteries, parks, or any lands of a public or quasi public nature when such lands shall be contiguous to, or within any weed district, to see that all weeds specified in the petition for the creation of such district are destroyed, prevented and exterminated in accordance with the rules and requirements of such district."2/   (Emphasis supplied.)

             [[Orig. Op. Page 4]]

            This statute provides that the specified cities ". . . shall provide for the destruction, prevention and extermination of all weeds specified in the petition which are within the boundaries of such city. . ."  (Emphasis supplied.) The statute further provides that such a city shall control noxious weeds "in the same manner and to the same extent" as provided for in the surrounding or contiguous weed district.  We construe this language to impose upon the specified cities the same duty to carry on a weed control program within their boundaries as the various sections of chapter 17.04 RCW, grant to, or impose upon weed districts.  See, also, AGO 51-53 No. 241, copy enclosed, where we said:

            ". . . Rem. Rev. Stat., § 2775-1 orders cities or towns contiguous to or surrounded by a weed district to provide for the destruction, prevention, and extermination of all weeds in the same manner and to the same extent required by the weed district. . . ."

            Quite clearly, the responsibilities of a weed district, as to areas outside cities or towns, extend to the destruction, prevention and extermination of weeds on private as well as public property.  See, RCW 17.04.190-17.04.210.  In essence, these sections authorize the appointment of a weed inspector whose duty is to carry out a weed control program by notifying the landowners within the district of their obligations to control weeds determined by the district to be noxious.  If the inspector determines a person holding an interest in real property within the district is not complying with the district's control program as set forth in its rules and regulations, a notice to control the same is given to such person.  Thereafter, if appropriate control measures are not taken, the inspector personally causes the measures to be taken.  See, RCW 17.04.200; RCW 17.04.210.  The costs incurred by the district, when the inspector personally causes the control measures to be taken, are chargeable against the land upon which the weeds were located, and collectible by the county treasurer as a "tax."3/

             [[Orig. Op. Page 5]]

            Accordingly, in our opinion the language of RCW 17.04.160, supra, not only authorizes but expressly requires cities which are contiguous to weed districts to control all weeds designated for control in a petition which are located within the cities' limits including those located on privately-owned lands.

            Question (2):

            You then inquire as to the statutory provision which authorizes a city to use public funds to control weeds on private lands.

            It is a general rule that public funds of a municipal corporation cannot be used for a private purpose.  64 C.J.S.Municipal Corporations § 1835; State ex rel. Collier v. Yelle, 9 Wn.2d 317, 115 P.2d 373 (1941).  See, also, Article VII, § 1, Amendment 14 and Article VIII, § 7, of the Washington state constitution.  Public funds may be used however for public purposes even though incidental to such use a private benefit is also obtained.  42 Am.Jur.,Public Funds § 57.

            As initially noted in this analysis, the control of noxious weeds is a proper exercise of the police power of the city for the public benefit.  In answer to your question, RCW 17.04.160, supra, is itself a grant of specific authority to cities to make expenditures to effectuate such controls as are required thereby.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

CHARLES B. ROE, JR.
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/In addition to the "petition" procedure for designating what species of weeds should be controlled as set forth in RCW 17.04.030, the legislature added in 1961 an additional weed specification procedure when it amended RCW 17.04.070 to provide that

            ". . . The qualified electors of any weed district, at any annual meeting, may make other weedsthat are not on the petition subject to control by the weed district by a two-thirds vote of the electors present: . . ."  (Emphasis supplied.) See, § 2, chapter 250, Laws of 1961.

2/In our opinion RCW 17.04.160 applies only to weeds specified in a petition and does not relate to weeds designated for control by a district at its annual meeting by a two-thirds vote of the electors present as provided in RCW 17.04.070.  See Footnote 1.  This is because the statute refers only to "all weeds specified in the petition which are within the boundaries of such city or town."

3/The legislature has provided this general procedure to municipal corporations on other occasions.  See, for example, RCW 35.21.310.  Statutes containing procedures similar to these have withstood challenges to their constitutionality.  Thain v. City of Palo Alto, supra.  See, also,Greenwood v. City of Lincoln, supra, and Wedemeyer v. Crouch, 68 Wash. 14, 122 Pac. 366 (1912).

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