Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1962 No. 100 -
Attorney General John J. O'Connell


A city or county acting separately or together does not have the authority to impose a flat charge upon each passenger boarding an airplane at a municipal airport which is operated jointly by said city and county.

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                                                                   March 5, 1962

Honorable John J. Lally
Prosecuting Attorney
Spokane County
Spokane, Washington

                                                                                                              Cite as:  AGO 61-62 No. 100

Dear Sir:

            By your previously acknowledged letter you have requested our opinion on a question which we paraphrase as follows:

            Does a city or county acting separately or together have the power to impose a charge upon each passenger boarding an airplane at a municipal airport jointly operated by such city and county?

            We answer this question in the negative.


            It appears from your letter that the charge so imposed would be collected by the airline when the ticket is purchased and remitted to the proper municipal offices.  The funds thus derived would be used to defray the cost of operating the airport.

            Cities and counties are agencies of the state.  They have no powers except those expressly granted by or necessarily implied from the constitution and state laws.  State ex rel. Taylor v. Superior Court, 2 Wn. (2d) 575, 98 P. (2d) 985 (1940);Pacific Etc. Ass'n v. Pierce County, 27 Wn. (2d) 347, 178 P. (2d) 351 (1947).  A more liberal statement may be made as to the powers of first class cities.  However, even first class cities are subject to restrictions found in the constitution and laws of this state, as well as in their own charters.  Winkenwerder v. Yakima, 52 Wn. (2d) 617, 328 P. (2d) 873 (1958).

             [[Orig. Op. Page 2]]

            RCW 14.08.200 authorizes cities and counties to jointly acquire and operate airports with the same powers as are granted to a municipality operating such facilities alone.

            An initial question arises as to whether or not the flat charge should be considered as a tax upon the right to travel, or in the alternative, simply a flat charge on each person departing by air travel, on account of the facilities furnished at the airport.

            If the charge were held to be the former, there would be a serious constitutional question raised.  The Constitution of the United States guarantees to every citizen the right to pass freely into or out of a state.  Crandall v. Nevada, 73 U.S. 35, 18 L.Ed. 745 (1867);Williams v. Fears, 179 U.S. 270, 21 S.Ct. 128, 45 L.Ed. 186 (1900);Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed. (2d) 1204 (1958).  This proposition is expressed in 49 U.S.C.A. § 1304, as follows:

            "There is recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit through the navigable airspace of the United States."

            InCrandall v. Nevada, supra, a flat tax to be collected by the carrier was imposed upon every person leaving the state by any vehicle used in the business of transporting passengers for hire.  As a tax based upon the right to travel interstate distinguished from a charge for service and accommodations, the court held it unconstitutional.  See, also,Hendrick v. Maryland, 235 U.S. 610, 35 S.Ct. 140, 59 L.Ed. 385 (1914).

            On the other hand, treated as a flat charge for the use of airport facilities, there would be no such constitutional barrier to its imposition.  Governmental bodies may exact reasonable fees for the use of facilities furnished to those engaged in interstate travel, on the basis of a claim of proprietorship.  See,Huse v. Glover, 119 U.S. 543, 7 S.Ct. 313, 30 L.Ed. 487 (1886); also, Hendrick v. Maryland, supra.  In such cases the amount of the charge and the method of its collection are primarily for determination by the public body.

            Courts are inclined to treat a charge as something other than a tax, according to its true nature and purpose.  See,State ex rel. Kern v. Emerson, 90 Wash. 565, 155 Pac. 579 (1916).  In view of the foregoing considerations, and because the object of the proposed charge is for defraying the cost of operating the airport, rather than general support of the government, our supreme court would most likely consider the charge as one for the use of facilities provided at the airport.  The next question to be decided then is whether or not the charge would comply with RCW 14.08.120 (6) and (7), relating to municipal airports, which provide as follows:

             [[Orig. Op. Page 3]]

            "(6) To determine the charges or rental for the use of any properties under its control and the charges for any services or accommodations, and the terms and conditions under which such properties may be used:  Provided, That in all cases the public is not deprived of its rightful, equal and uniform use of such property.  Charges shall be reasonable and uniform for the same class of service and established with due regard to the property and improvements used and the expense of operation to the municipality.  The municipality shall have and may enforce liens, as provided by law for liens and enforcement thereof, for repairs to or improvement or storage or care of any personal property, to enforce the payment of any such charges.

            "(7) To exercise all powers necessarily incidental to the exercise of the general and special powers herein granted."  (Emphasis supplied.)

            The language we have emphasized requires that the public be given "equal and uniform use of such property," and further, that "Charges shall be reasonable and uniform for the same class of service and established with due regard to the property and improvements used and the expense of operation to the municipality."  As proposed, the charge would be exacted only from those persons boarding an airplane for travel, to be paid when a ticket was purchased.  Other passengers such as those who arrive at their destination or change planes would not pay the charge although they would have equal access to the same facilities.  This would be contrary to the uniform charge provisions of the above statute.

            Municipalities may, of course, in imposing charges for services, make reasonable classifications of their patrons.  Faxe v. Grandview, 48 Wn. (2d) 342, 294 P. (2d) 402 (1956).  However, if the charge should be based upon the use of boarding and landing facilities, there would appear to be no sound reason for classifying "departing" from "arriving" passengers.

            On the other hand, if the boarding and landing facilities were only a nominal part of the charge, and it was based primarily upon the use of waiting rooms, rest rooms, etc., departing passengers would be paying a flat fee without regard to whether they used such facilities.  A person cannot be required to pay for a municipal service he neither desires nor receives.  In a prior opinion of this office, AGO 57-58 No. 152, concerning charges to a municipal utility user, it was said:

             [[Orig. Op. Page 4]]

            "With certain exceptions such municipal services are purchased on a voluntary contractual basis by members of the public.  A resident of the city who does not desire a particular service is not required to either subscribe to or pay for such service."

            The exceptions noted in the quote are statutory and none are found in RCW 14.04.120 (6).  Of course, even if the charge could be upheld in the first instance as a "readiness to serve" charge, it would still be in violation of the uniform charge provision of RCW 14.08.120,supra, because the facilities stand ready to serve incoming passengers, to whom no charge is made.

            Accordingly, it is our opinion that the proposed charge would be invalid.

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

Very truly yours,

Attorney General

Assistant Attorney General