AGO 1956 No. 239 - Apr 2 1956
CITIES AND TOWNS ‑- METROPOLITAN PARK DISTRICTS ‑- PARKS ‑- SWIMMING POOLS ‑- COUNTIES ‑- SCHOOL DISTRICTS.
Chapter 67.20 RCW, which empowers separately organized park districts to acquire land for swimming pools, to build, operate and maintain swimming pools, to enact police regulations therefor and to contract with other governmental units for conducting a recreation program, does not increase the power of a metropolitan park district organized pursuant to chapter 35.61 RCW so as to permit such a district to create local improvement district for the construction of a swimming pool.
Chapter 67.20 RCW does not empower a first class city, either independently or jointly with a county and school district, to form a local improvement district for financing the construction of a swimming pool, where part of the area to be benefited by the improvement and thereby assessed therefor, lies outside the city limits and within the area of the county and/or the school district.
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April 2, 1956
Honorable Mark Litchman, Jr.
tate Representative, 45th District
800 American Building
Seattle 4, Washington Cite as: AGO 55-57 No. 239
We are in receipt of your letter requesting an opinion from this office on the following questions, to-wit:
(1) Whether chapter 67.20 RCW would empower a metropolitan park district to form a local improvement district for financing the construction of a swimming pool.
(2) Whether chapter 67.20 RCW would empower the City of Seattle, King County and the Shoreline School District jointly to create a local improvement district for financing the construction of a swimming pool, where the area intended to comprise such district lies partly within and partly without the city [[Orig. Op. Page 2]] limits of Seattle, within King County, and partly within the Shoreline School District.
Our answer to both of these questions is in the negative.
(1) With regard to your first question, the initial problem to be considered is whether a metropolitan park district of a first class city, organized pursuant to chapter 35.61 RCW, may create a local improvement district for any purpose. Our opinion is in the negative. Chapter 35.61 RCW, which gives authority to first class cities to create metropolitan park districts and defines the powers of said districts, nowhere gives to such districts the power to create local improvement districts, nor is there language in this chapter from which such a power can be reasonably inferred. On the contrary, the metropolitan park district act is specific as to improvements by the local assessment plan. The pertinent section of this statute is RCW 35.61.220, which is set forth as follows:
"If at any time any proposed improvement of any parkway, avenue, street, or boulevard is deemed by the board of metropolitan park commissioners to be a special benefit to the lands adjoining, contiguous, approximate to or in the neighborhood of the proposed improvement, which lie within the city, the board may so declare, describing the property to be benefited. Thereupon they may petition the city council to cause the improvement contemplated by the commissioners to be done and made on the local assessment plan, and the portion of the cost of the improvement as fixed by such assessment roll to be assessed against the said property so benefited in the same manner and under the same procedure as of other local improvements, and the remainder of the cost of such improvement to be paid out of the metropolitan park district fund.
"The board of park commissioners shall designate the kind, manner and style of the improvement to be made, and may designate the time within which it shall be made."
[[Orig. Op. Page 3]]
It will be observed that instead of empowering the boards of metropolitan park districts to form local improvement districts on their own authority, this statute merely authorizes them to "petition the city council to cause the improvement contemplated by the commissioners to be done and made on the local assessment plan." Presumably the city council could refuse the prayer of any such petition. If this were done, it is difficult to see how the metropolitan park district board could proceed on its own authority with a local assessment plan. From the statutory language, it is evident that the city council is to be the factor causing the local improvement district to be made or formed, and not the board of commissioners of the park district. RCW 35.61.230, providing that objections to assessments must be made with the city council, adds support to this construction.
In rendering this opinion, we have considered the effect of RCW 35.43.020, requiring liberal construction of municipal local improvement statutes. However, under the most liberal construction of RCW 35.61.220, we cannot read in a power which is not given. Where the legislature has given the power to municipal corporations to finance improvements on a local assessment plan, it has done so in express language (see RCW 35.43.040 and 36.88.010).
All laws upon a given subject should be construed together. White v. North Yakima, 87 Wash. 191, 195. Municipal corporations have only those powers conferred by statute or necessarily implied therefrom. State ex rel. Cornell v. Smith, 149 Wash. 173, 178. The legislature has not expressly given to metropolitan park districts the power to create local improvement districts. Rather, it has provided an entirely different manner for financing local improvements which may fall under the jurisdiction of such districts. Consequently, it must be presumed that the legislature did not intend metropolitan park districts to have this power. See State ex rel. Port of Seattle v. Department of Public Service, 1 Wn. (2d) 102, 112;State v. Thompson, 38 Wn. (2d) 774, 779;James v. McMillan, 113 Wash. 644.
The second problem to be considered is whether a metropolitan park district may petition the city in which it is organized to create a local improvement district for the purpose of financing the construction of a swimming pool. Our opinion is that it may not. The pertinent portion of RCW 35.61.220 reads as follows:
"If at any time any proposed improvement of anyparkway, avenue, street, or boulevard is deemed by the board of metropolitan park commissioners to be a special benefit to the lands adjoining, contiguous, approximate to or in [[Orig. Op. Page 4]] the neighborhood of the proposed improvement, which lie within the city, the board may so declare, describing the property to be benefited. Thereupon they may petition the city council to cause the improvement contemplated by the commissioners to be done and made on the local assessment plan, . . ." (Emphasis supplied.)
It will be observed that this statute, providing for local assessment plans, contemplates only parkways, avenues, streets and boulevards. It conspicuously omits parks and swimming pools. The term "parks or swimming pools" is not generally held to be included in the term "parkways." Village of Grosse Pointe Shores v. Ayers, 235 N.W. 829, 254 Mich. 58;Municipal Securities Corporation v. Kansas, 177 S.W. 856, 265 Mo. 252. Obviously these terms cannot be comprehended within the terms "boulevards" or "streets."
Thus, it is our opinion that it was the intention of the legislature, in enacting this statute, to exclude parks and swimming pools from the scope of its operation. The term "parks" is generally held to include "swimming pools." Smith v. Fuest, (1928), 125 Kan. 341, 263 Pac. 1069; LeFevre v. Brookings (1937), 272 N.W. 795, 65 S.D. 190;Thayer, et al. v. City of St. Joseph, 54 S.W. (2d) 442, 227 Mo. App. 623.
Again we have considered the rule of liberal construction imposed by RCW 35.43.020. However, statutes conferring the power to levy and collect assessments for special benefits cannot be enlarged by an equitable construction. In re Third Avenue, Seattle, 54 Wash. 460. Further, even the most liberal construction would not justify our reading the words "parks" and/or "swimming pools" into this statute. RCW 35.61.010 and 35.61.130 contain lists of the various public developments under which a metropolitan park district may assume control. These lists contain the word "parks." This furnishes convincing evidence that the legislature intentionally omitted the word "parks" from the provisions of RCW 35.61.220. This conclusion is supported by the maxim of expressio unius est exclusio alterius. State ex rel. Port of Seattle v. Department of Public Service, supra; State v. Thompson, supra.
Thirdly, does chapter 67.20 RCW enlarge the power of a metropolitan park district so as to empower it to create a swimming pool on the local assessment plan? Our opinion is that it does not. RCW 67.20.010 provides as follows:
[[Orig. Op. Page 5]]
"Any city acting through its city council, or its board of park commissioners when authorized by charter or ordinance, any separately organized park district acting through its board of park commissioners or other governing officers, any school district acting through its board of school directors, any county acting through its board of county commissioners, and any town acting through its city council shall have power, acting independently or in conjunction with the United States, the state of Washington, any county, city, park district, school district or town or any number of such public organizations, to acquire any land within this state for park, playgrounds, gymnasiums, swimming pools, field houses, and other recreational facilities, bathing beach, or public camp purposes, and roads leading from said parks, playgrounds, gymnasiums, swimming pools, field houses, and other recreational facilities, bathing beaches, or public camps to nearby highways, by donation, purchase or condemnation, and to build, construct, care for, control, supervise, improve, operate, and maintain parks, playgrounds, gymnasiums, swimming pools, field houses, and other recreational facilities, bathing beaches, roads, and public camps upon any such land, including the power to enact and enforce such police regulations not inconsistent with the Constitution and laws of the state, as are deemed necessary for the government and control of the same. The power of eminent domain herein granted shall not extend to any land outside the territorial limits of the governmental unit or units exercising said power.
"Any city, town, county, separately organized park district, or school district shall have power to establish, care for, control, supervise, improve, operate and maintain a public camp or camps anywhere within the state, and to that end may make, promulgate and enforce any reasonable rules and regulations in reference to such camps and make such charges for the use thereof as may be deemed expedient."
[[Orig. Op. Page 6]]
This chapter nowhere contains any provision allowing any of the municipal corporations mentioned therein to create local improvement districts for the attainment of the objectives which these certain municipal corporations are empowered to accomplish by virtue of its terms. As above stated, it must be presumed that, had the legislature intended that these municipal corporations have the power to create local improvement districts to finance the improvements which they are empowered to undertake by the terms of this statute, it would have given them such power in express language.
We conclude that these objectives must be attained by the use of the existing financial powers of these municipal corporations. Therefore, metropolitan park districts, not having been given the power to create local improvement districts by the statute authorizing their creation, chapter 35.61 RCW, they may not create them to accomplish any additional powers given them by chapter 67.20 RCW.
The fact that metropolitan park districts or counties, which do not have the power to finance parks on the local assessment plan, are authorized by chapter 67.20 RCW to act jointly with cities, which do have this power, to acquire and develop parks and swimming pools, cannot create in counties or metropolitan park districts any additional power to form by themselves, or jointly with the city, local improvement districts. The power of municipal corporations to cooperate in public improvements is dependent on what each may do alone. Griggs v. Port of Tacoma, (1928), 150 Wash. 402.
(2) In considering your second question, it should be noted that the City of Seattle has not seen fit to organize a separate metropolitan park district, but rather has a park department with an administrative body appointed by the mayor. Charter of the City of Seattle, Article 11. Control of parks in the City of Seattle lies in its mayor and city council. Therefore, chapter 35.61 RCW has no application to the City of Seattle.
RCW 67.20.010 authorizes any city to acquire land "within the state" for construction and maintenance thereon of swimming pools. RCW 35.43.040 authorizes any city to acquire, construct and maintain swimming pools financed by local assessment plans. Therefore, the City of Seattle has the power to acquire land and to construct and maintain thereon swimming pools financed by this means.
[[Orig. Op. Page 7]]
You have indicated, however, that a large portion of the property to be benefited, and therefore assessed by the proposed local improvement district, would lie outside the City of Seattle. A city may not assess property lying without its limits, unless such power is derived from some proper authority. InEdmonds Land Co. v. City of Edmonds (1911), 66 Wash. 201, 202, our supreme court said:
"The city of Edmonds has no extraterritorial jurisdiction. It cannot levy an assessment upon lands beyond its limits to pay for an improvement undertaken as a municipal improvement, even though it should be confessed that such outside lands were directly benefited. The power to levy an assessment upon lands benefited must be held to be a power to be exercised upon lands that are subject to municipal control. If it is sought to exercise purely municipal powers outside of its own limits, such authority must be derived from some proper authority clearly conferring it. . . ."
We have been unable to find any authority, statutory or otherwise, empowering the City of Seattle to assess property lying outside its limits and within the boundaries of King County and/or Shoreline School District for a local improvement district consisting of a swimming pool.
Chapter 67.20 RCW gives counties, cities and school districts the power jointly to acquire, construct and maintain swimming pools. But a reading of the pertinent statutes, Titles 28 and 36 RCW, reveals that school districts and counties are not given the power to form local improvement districts to finance acquisition, construction and maintenance of swimming pools. Nor, as stated above, does chapter 67.20 RCW enlarge the powers of counties and school districts to the extent of empowering them to create or join in the creation of local improvement districts. Griggs v. Port of Tacoma, supra. See, also,Holton v. Seattle, 168 Wash. 478, 482.
No specific authority having been given by the legislature (from whence such authority must originate) to these municipal corporations to act, we must conclude that the legislature did not intend them to have this power. Therefore, any proposed local improvement district in the area to which you refer must be created by the City of Seattle and be a local improvement district thereof.
[[Orig. Op. Page 8]]
Since a large portion of the contemplated local district lies outside of the City of Seattle, it would seem impossible under existing law to form the district as planned.
We hope the foregoing will be of service to you.
Very truly yours,
DUANE S. RADLIFF
Assistant Attorney General