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AGO 1968 No. 32 - October 08, 1968
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John J. O'Connell | 1957-1968 | Attorney General of Washington


CITIES AND TOWNS - THIRD CLASS - ORDINANCES - PERPETUAL FRANCHISE TO RAILROAD COMPANY.

A third class city in the state of Washington is not authorized to enact an ordinance granting a perpetual (irrevocable) franchise to a railroad company to permit the railroad to lay its tracks and spur lines across city streets and rights-of-way and to operate its trains across said tracks and spur lines.

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                                                                 October 8, 1968

Honorable Paul Barden
State Representative, 30th District
1112 South 168th
Seattle, Washington 98148

                                                                                                                 Cite as:  AGO 1968 No. 32

Dear Sir:

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

            Is a third class city in the state of Washington authorized to enact an ordinance granting a perpetual (irrevocable)1/franchise to a railroad company to permit the railroad to lay its tracks and spur lines across city streets and rights-of-way and to operate its trains across said tracks and spur lines?

            We answer your question in the negative for the reasons set forth in the following analysis.

                                                                     ANALYSIS

            In paraphrasing your question, we have stated it solely in terms of the present authority of a city of the third class to grant a franchise of the type described in your letter.  Therefore, nothing contained herein should be regarded as passing upon the validity of any franchise which may have been granted by a particular municipality at sometime in the past.  The legality  [[Orig. Op. Page 2]] of any such previously granted franchise is a judicial question, which can only be determined through an interpretation and evaluation of the statutes and/or constitutional provisions which were in effect at the time the franchise was granted.2/

             This preliminary qualification, it should be added, is particularly pertinent with regard to municipal franchises which were granted prior to statehood.  Article I, § 8 of the Washington constitution, as adopted in 1889, prohibits the legislature from enacting any law granting any irrevocable privilege, franchise or immunity, and, as we shall see in a moment, this provision has a definite bearing on the present authority of cities and towns, as well as the legislature itself.  On the other hand, this provision would have no bearing upon the validity of a franchise granted prior to adoption of the constitution in 1889; cf., Seattle v. Columbia, Etc., R.R. Co., 6 Wash. 379, 33 Pac. 1048 (1893), in which the Washington court upheld the validity of a perpetual franchise which had been granted to a railroad by the city of Seattle in 1883.

            The general statute presently governing the granting of franchises by cities of the third class is RCW 35.24.290 (10), which provides as follows:

            "The city council of each third class city shall have power:

            ". . .

            "(10) To permit, under such restrictions as it may deem proper, and to grant franchises for, the laying of railroad tracks, and the running of cars propelled by electric, steam or other power thereon, and the laying of gas and water pipes and steam mains and  [[Orig. Op. Page 3]] conduits for underground wires, and to permit the construction of tunnels or subways in the public streets, and to construct and maintain and to permit the construction and maintenance of telegraph, telephone and electric lines therein;

            ". . ."3/

             In addition, authority is granted to all classes of cities by RCW 81.64.010 to grant franchises for the installation and maintenance of street railways, although it is doubtful that the latter statute has any application to your question because of the distinction which has been drawn by the court between a street railway and a railroad.  See,Front Street Cable Ry. Co. v. Johnson, 2 Wash. 112, 25 Pac. 1084 (1891).  In any event, however, neither of these statutes contains any express authority to grant a franchise in perpetuity.

            This absence, in our judgment, is crucial.  In the first place, we must be guided in this opinion by the well-established proposition that a third class city in this state has only such powers as have been expressly granted to it by statute, together with those powers necessarily implied from the express grant, and those essential to the accomplishment of the declared purposes and objects of the municipality.  See,Othello v. Harder, 46 Wn.2d 747, 284 P.2d 1099 (1955); State ex rel. Port of Seattle v. Superior Court, 93 Wash. 267, 160 Pac. 755 (1916);Aberdeen v. National Surety Co., 151 Wash. 55, 275 Pac. 62 (1929);Christie v. The Port of Olympia, 27 Wn.2d 534, 179 P.2d 294 (1947); andPac. Etc. Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947).  Furthermore, as is pointed out in the Pierce County case, if there is doubt as to whether a particular power has been granted to a municipal corporation, it must be denied.  Griggs v. Port of Tacoma, 150 Wash. 402, 273 Pac. 521 (1928); State ex rel. Hill v. Port of Seattle, 104 Wash. 634, 177 Pac. 671 (1919).

            Additionally, the absence of any express authority regarding the granting of a perpetual, irrevocable franchise by a third class city in this state is significant, as well, from the standpoint of what appears to be the generally recognized rule of construction regarding the subject of municipal franchises.  This rule is expressed in 12 McQuillin, Municipal Corporations, § 34.47, as follows:

            "Unless restricted a municipality may fix the duration of a franchise at any reasonable length of time but it cannot without statutory authority grant a perpetual franchise. . . .

            "The power conferred on a municipality to fix  [[Orig. Op. Page 4]] the terms and conditions upon which a public service corporation shall occupy its streets, includes power to fix the term of such occupation, as by limiting the duration to a certain number of years, except that a perpetual franchise cannot be granted unless the power so to do has been delegated, in express terms, or by necessary implication, . . ."

            Thus, since there is no express provision for the granting of such a perpetual franchise as you have in mind in RCW 35.24.290 (10), supra (or, for that matter, in RCW 81.64.010 to the extent that this statute may also be applicable), the only question remaining to be determined is whether such a provision can be found by necessary implication.  For two separate reasons, we must answer this question in the negative.

            First, the finding of statutory authority "by necessary implication" from an express grant requires a determination of legal necessity rather than practical necessity.  See,State ex rel. State Board Etc. v. Clausen, 84 Wash. 279, 283, 146 Pac. 630 (1915).  To clarify this point, implied powers are such as are necessary to carry into effect those powers which are expressly granted, and which must, therefore, be presumed to have been within the intention of the legislative grant.  City of Madison v. Daley, 58 Fed. 751 (1893).  Again, if there is a fair or reasonable doubt as to whether or not a particular power has been granted, it must be denied.  Pacific Etc. Ass'n. v. Pierce County, supra.  It is manifest, we believe, that the ability to grant a perpetual, irrevocable franchise to a railroad in order to allow the railroad to lay its tracks and spur lines across a city's streets and rights-of-way, and to operate its trains thereon, cannot be said to meet this test of legal necessity.

            Our second reason for reaching this same conclusion involves the state constitutional provision mentioned at the outset of this opinion.  Article I, § 8 of the constitution reads as follows:

            "No law granting irrevocably any privilege, franchise or immunity, shall be passed by the legislature."

            A similar provision appeared in the Alabama constitution of 1875, stating that no law should be passed by the General Assembly "making any irrevocable grants of special privileges or immunities."4/   Based upon this provision, the Alabama court  [[Orig. Op. Page 5]] in Birmingham & Pratt Mines Street Ry. Co. v. Birmingham Street Ry. Co., 79 Ala. 465, 58 Am.Rep. 615 (1855), held as follows:

            ". . . The policy of the law, as now declared by our constitution, is as clear in the condemnation of the grant of irrevocable exclusive privileges conferred by franchise, as that of the common law was in the reprobation of pure monopolies, which were always deemed odious, not only as being in contravention of common right, but as founded in the destruction of trade by the extinguishment of a free and healthy competition. - The Case of Monopolies, 11 Rep. 84.

            "The exclusive right of the appellee to the privilege claimed, in our opinion, can not be sustained.  The General Assembly would itself have no power under the constitution to make such a grant.  A fortiori, a mere municipality would have no such power. . . ."

            We believe the reasoning of this Alabama case is sound.  Accordingly, it follows that if the provisions of RCW 35.24.290 (10),supra (or, if applicable RCW 81.64.010) were to be read as implying a legislative intent to authorize a city of the third class to grant a perpetual, irrevocable franchise, a substantial doubt would then have to arise as to the constitutionality of the statute.  However, it is well established that a statute which is susceptible to more than one construction is not to be read in such a manner.  See,Soundview Pulp Co. v. Taylor, 21 Wn.2d 261, 150 P.2d 839 (1944).

            Therefore, based upon this and the other rules of statutory construction noted above, we must conclude that the present statutes pertaining to the passage of ordinances granting franchises by third class cities do not permit the passage of an ordinance granting such franchises in perpetuity.5/

             [[Orig. Op. Page 6]]

            For this reason, we answer your question, as paraphrased, in the negative.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/We understand the terms "perpetual" and "irrevocable," for purposes of your question, to be synonomous meaning, simply, a franchise which is granted irrevocably, in perpetuity.

2/Since a franchise, whether granted by statute or ordinance, has the legal status of a contract, it follows that no subsequent legislative enactment can impair its validity or enforceability if the franchise was authorized under the law in effect at the time it was granted.  See,Tukwila v. Seattle, 68 Wn.2d 611, 414 P.2d 597 (1966); and Washington constitution, article I, § 23, which provides:

            "No bill of attainder, ex post facto law, or law impairing the obligations of contracts shall ever be passed."

3/See, AGO 65-66 No. 92, copy enclosed, for a general discussion of the scope of this subsection, in terms of the authorized purposes for which a franchise may be granted.

4/Alabama constitution of 1875, Article I, § 23.

5/To the extent that it supports a contrary conclusion with respect to the power vested in a mayor and city council by RCW 30.32.010, we hereby overrule AGO 59-60 No. 109.  In this prior opinion, we failed to note the fact pointed out earlier in this opinion with respect to the early case ofSeattle v. Columbia, Etc. R. R. Co., supra namely, that the perpetual franchise which was upheld by the court in that case had been granted prior to the adoption of Article I, § 8 of our state constitution in 1889.

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