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AGO 1958 No. 187 - April 30, 1958
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John J. O'Connell | 1957-1968 | Attorney General of Washington

MUNICIPAL CORPORATIONS ‑- WATER DISTRICT ‑- SALE OF SURPLUS TIMBER.

CONTRACTS ‑- AUTHORITY OF WATER DISTRICT TO SELL SURPLUS TIMBER BY HIRING A CONTRACT LOGGER.

A water district must sell any property which will not be needed pursuant to the provisions of RCW 57.08.015.

The power to sell in any manner must be necessarily or fairly implied in or incidental to the broad power to sell which is granted by statute.

                                                                  - - - - - - - - - - - - -

                                                                   April 30, 1958

Honorable James E. Duree
Prosecuting Attorney
Pacific County
Box 552
Raymond, Washington                                                                                       Cite as:  AGO 57-58 No. 187

Dear Sir:

            You have advised that a water district in Pacific county has about twenty-five million board feet of merchantable timber on its watershed and has requested an opinion as to the procedure of executing the sale thereof, by the following question:

            "Would it be legal for a water district to hire a contract logger and log their own timber, or is there some basic reason of public policy that prohibits this?"

            For purposes of this opinion, we have rephrased the legal questions inherent in your request as follows:

            1. Must the property in question be sold pursuant to RCW 57.08.015?

             [[Orig. Op. Page 2]]

            2. May the property in question be sold in the proposed manner under RCW 57.08.015?

            Your first question is answered in the affirmative, and the answer to your second question is contained in the analysis.

                                                                     ANALYSIS

            You make reference to RCW 57.08.015 and inquire if the sale must be made pursuant to that provision.  By such reference, we assume that the district board has determined that such timberis not needed or will not be needed for district purposes.

            Section 8, chapter 114 of the Session Laws of 1929 (RCW 57.08.010) empowered the water district to acquire property.  However, no provision for disposal thereof was provided; therefore, such was governed by the common law.

            "'As a general rule, the power of a municipality to convey property is equal to its power to acquire it.  At common law a municipal corporation, unless restrained by its charter, could dispose of property in the same manner as private individuals.'  Blaser v. Dalles City, 171 Ore. 441, 137 P. (2d) 991, . . . " 10 McQuillin, Municipal Corporations (3rd ed.), p. 73 (note 92).

            See also 63 C.J.S. 510.

            However, § 1, chapter 50, Session Laws of 1953 (RCW 57.08.015), now expressly provides for disposal of property held by such district.

            RCW 57.08.015 clearly provides for the sale of property which is not and will not be needed:

            "The board of commissioners of a water district may sell, at public or private sale, property belonging to the district if the board determines by unanimous vote of the elected members of the board that the property is not and will not be needed for district purposes and if the board gives notice of intention to sell as in this section provided.

             [[Orig. Op. Page 3]]

            "The notice of intention to sell shall be published once a week for three consecutive weeks in a newspaper of general circulation in the district.  The last publication shall be at least twenty days but not more than thirty days before the date of sale.  The notice shall describe the property and state the time and place at which it will be sold or offered for sale, the terms of sale, whether the property is to be sold at public or private sale, and if at public sale the notice shall call for bids, fix the conditions thereof and shall reserve the right to reject any and all bids."

            Therefore, we are of the opinion that the property in question, if sold, must be sold pursuant to the above statutory provision.

            Municipal corporations are created to aid the state government in the regulation and administration of local affairs.  As a general proposition of law, it is undisputed that a municipal corporation possesses and can exercise the following powers and no others:

(1) those granted in express words;
(2) those necessarily or fairly implied in or incidental to the powers expressly granted; and
(3) those essential to the accomplishment of the declared objects and purposes of the corporation‑-not simply convenient, but indispensable.  State ex rel. Wauconda Investment Co. v. Superior Court, (1912) 68 Wash. 660, 124 Pac. 127;Carpenter v. Okanogan County, (1931) 163 Wash. 18, 299 Pac. 400.

            The broad power to sell property which is not needed or will not be needed is granted by RCW 57.08.015, but obviously no express power is granted to sell in the manner proposed.  The question thereby becomes whether the power to do so is necessarily or fairly implied in or incidental to the powers expressly granted.

            We are aware that the sale of timber before severance is probably the more commonly recognized method of sale by a municipal corporation.  This method allows a municipal corporation to dispose of property without engaging in a business enterprise foreign to the objects and purposes for which the municipal corporation was created.  However, we cannot say that the sale must be made in this manner under every conceivable set of facts.  It may be that in some cases the manner of sale proposed by the water district is the only feasible method of sale.  If so, the power to sell in the manner contemplated would be necessarily or fairly implied in or incidental to the broad power to sell which is expressly granted by  [[Orig. Op. Page 4]] statute.  Whether these facts exist in this particular case is a question which we cannot determine, because the facts are not before us.  However, in determining this question, the board must apply a real and objective standard, recognizing that a court will construe the authority of a municipal corporation strictly.

            Therefore, we are of the opinion that if, in fact, the proposed plan is the only feasible method of sale, the power to sell in the manner contemplated is necessarily or fairly implied in or incidental to the broad power to sell.  However, if the facts are otherwise, the district must sell without employing a logger to sever the timber.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP R. MEADE
Assistant Attorney General

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