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AGO 1960 No. 109 - March 31, 1960
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John J. O'Connell | 1957-1968 | Attorney General of Washington

OFFICES AND OFFICERS - COUNTY - COUNTY COMMISSIONERS - AUTHORITY TO GRANT A FRANCHISE OVER COUNTY LANDS.

The board of county commissioners does not have legal authority to grant a perpetual franchise over county lands to the Bonneville Power Administration for a power line.

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                                                                  March 31, 1960

Honorable John Hancock
Prosecuting Attorney
Okanogan County
Hancock Building
Okanogan, Washington                                                                                   Cite as:  AGO 59-60 No. 109

Dear Sir:

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

            Does the board of county commissioners have legal authority to grant a perpetual franchise over county lands to the Bonneville Power Administration for a power line?

            We answer this question in the negative.

                                                                     ANALYSIS

            The resolution of this question requires an analysis of three separate statutes.  The first of these three statutes is § 1, chapter 85, Laws of 1949, RCW 36.34.310.  This is a general statute authorizing any county to lease any property owned by it to the United States or to any agency thereof.  Such leases are limited by the express terms of this act to ninety-nine years and must provide for renegotiation of rentals at five year intervals.  It is our opinion that this statute covers all county property not otherwise provided for by specific statutes.  Such property may be leased to the Bonneville Power Administration for power lines for a period not exceeding ninety-nine years as provided by statute.

             [[Orig. Op. Page 2]]

            Two specific statutes, however, cover the granting of franchises on roads by the board of county commissioners.  Section 38, chapter 187, Laws of 1937, now divided and codified as RCW 36.55.010, RCW 36.55.040 through 36.55.060; and, § 1, chapter 173, Laws of 1903, RCW 80.32.010.  Section 38, chapter 187, Laws of 1937 is a part of the Washington State Aid Highway Act which dealt comprehensively with the county road and city street system of this state and repealed all conflicting acts.  This 1937 act in § 38 granted authority to the boards of county commissioners to grant franchises on county roads to "persons or private or municipal corporations" for "electric lines . . . and any other such facility."  Such franchises were limited to a period not exceeding fifty years.

            InState ex rel. York v. Board of County Commissioners, 28 Wn. (2d) 891, 184 P. (2d) 577 (1947) our court considered this statute at length.  The court pointed out that § 38 was a re enactment of chapter 106, Laws of 1905.  In its opinion the court liberally construed this statute and permitted the grant of a franchise to an electrical cooperative for the maintenance of a high voltage transmission and distribution line.  Viewing this statute in the light of that opinion, it is our opinion that the Bonneville Power Administration could similarly be granted such a franchise under this act for a period not exceeding fifty years.

            The other statutes covering the granting of franchises on roads by county commissioners is § 1, chapter 173, Laws of 1903, RCW 80.32.010.  At the time this statute was enacted the present division of local roads into county roads and city streets had not yet come into being.  This 1903 statute permitted the grant of franchises on a "public street or road" for electric power lines by the legislative authority of a city or town or, when not within the limits of any incorporated city or town, by the board of county commissioners.  This statute places no limit of time on the length of such a franchise.  InSeattle v. Columbia etc. R. R. Co., 6 Wash. 379, 33 Pac. 1048 (1893), our court held that a perpetual franchise is not contrary to state law and may be granted by a city except where prohibited by the city charter.  See 2 A.L.R. 1105,Grant of Perpetual Franchise to Public Service Corporation.  This 1903 statute was not expressly repealed by chapter 187, Laws of 1937 and was recently considered by our court inWashington Water Power Co. v. Rooney, 3 Wn. (2d) 642, 101 P. (2d) 580 (1940).  That case was concerned, however, only with the authority of the city commissioners over city streets and did not consider the authority of the county commissioners over county roads.

            These two statutes being inpari materia, relating to the same matter must be construed together.  Such statutes are intended to be consistent and harmonious in their several parts and provisions.  State v. Houck,  [[Orig. Op. Page 3]] 32 Wn. (2d) 681, 203 P. (2d) 693 (1949).  It is our opinion that chapter 187, Laws of 1937 is a complete act on the subject of county roads as defined in that act and limits franchises on these roads to a period not exceeding fifty years.  It is our further opinion that chapter 173, Laws of 1903 is limited to "public roads and streets" excepting county roads and as to these a perpetual franchise may be granted by the legislative authority of a city or town (except where prohibited by charter) or, when not within the limits of any incorporated city or town, by the board of county commissioners if any such public roads and streets are still under their jurisdiction.

            Construing these three statutes together it is our conclusion that the board of county commissioners may grant a franchise on county roads to the Bonneville Power Administration for a power line for a period not exceeding fifty years as provided by § 38, chapter 187, Laws of 1937, now divided and codified as RCW 36.55.010, RCW 36.55.040 through 36.55.060.  The board of county commissioners may lease other county property to the Bonneville Power Administration for power lines for a period not exceeding ninety-nine years as provided in § 1, chapter 85, Laws of 1949, RCW 36.34.310.  If there be any "public roads and streets" which are not county roads and still are under the jurisdiction of the board of county commissioners then, as to these, a perpetual franchise may be granted as provided by § 1, chapter 173, Laws of 1903, RCW 80.32.010.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

STANTON P. SENDER
Assistant Attorney General

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