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Attorney General

Bob Ferguson

AGO 1957 No. 76 - Jun 4 1957
Attorney General John J. O'Connell


Third class cities may convey real property "for the common benefit" but can lease real property only for limited purposes.

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                                                                    June 4, 1957

Honorable Charles O. Carroll
Prosecuting Attorney King County
County-City Building
Seattle 4, Washington                                                                                                                Cite as:  AGO 57-58 No. 76

Attention:  Mr. K. G. Smiles, Chief Civil Deputy

Dear Sir:

            By letter of May 23, 1957, enclosing a letter from the city attorney of Auburn, Washington, you have asked our opinion on the following question:

            May the City of Auburn, a third class city, legally convey or lease certain real property to the Auburn Elks Lodge, most of which property would be maintained by the lodge as a public park and playground and a small area of which would be used by the Elks as a site for a private lodge building?

            It is our opinion that the city can convey but not lease the property for these purposes.


            The applicable statutes provide in pertinent part as follows:

            RCW 35.24.010:

            "Every city of the third class . . . may purchase, lease, receive, hold, and enjoy real and personal property and may control anddispose of it for the common benefit; . . ."  (Emphasis supplied.)

             [[Orig. Op. Page 2]]

            RCW 35.24.300:

            "The city council of such city shall have power to purchase, lease, or otherwise acquire real estate and personal property necessary or proper for municipal purposes and to control, lease, sublease, convey or otherwise dispose of the same; to acquire and plat land for cemeteries and parks and provide for the regulation thereof; to lease any waterfront and other lands adjacent thereto owned by it for manufacturing, commercial or other business purposes; to lease for wharf, dock and other purposes of navigation and commerce such portions of its streets which bound upon or terminate in its waterfront or the navigable waters of such city, subject, however, to the written consent of the lessees of a majority of the square feet frontage of the harbor area abutting on any street proposed to be so leased. . . ."

            These statutes have been construed by our Washington supreme court in the very recent case ofMiller v. The City of Pasco, 150 Wash. Dec. No. 8, 207 [[50 Wn.2d 229]].  Referring first to RCW 35.24.010, we quote from the court's opinion beginning on page 209, as follows:

            "The intention of the legislature is clear that, when cities of the third class obtain unqualified title to real estate, they may dispose of it when such disposition is for thecommon benefit.  There is nothing in the act which would indicate that fee title to real estate must remain irrevocably in the municipality.  The act provides that third-class cities may 'dispose of it [property] for the common benefit.'

            "To ascertain legislative intent in the interpretation of a statute, the words used are to be given their usual and ordinary meaning.  Pacific Northwest Alloys v. State, 149 Wash. Dec. 670 [[49 Wn.2d 702]], 673, 306 P. (2d) 197 (1957).  What is the usual and ordinary meaning of the words 'dispose of'?  Webster's New International Dictionary (2d ed.) defines the words as 'To get rid of; . . . part with; . . . bargain away.'

            ". . . Giving the words, 'dispose of,' their usual and ordinary  [[Orig. Op. Page 3]] meaning, RCW 35.24.010 authorizes thesale of the property, under the facts of this case.

            "Does RCW 35.24.010,supra, grant to cities of the third class authority to lease such property?

            "The act grants to cities of the third class the right to control such property for the common benefit.  In the absence of a specific legislative grant to cities of the third class to permit the leasing of municipally-owned property, such cities are not authorized to delegate thecontrol of their property to others.  The power to grant the control of municipally-owned property, by lease or otherwise, is not given to cities of the third class by RCW 35.24.010"

            The court had this to say about the powers of third class cities granted by RCW 35.24.300,supra, (p. 211):

            "Two rules of statutory construction, to which we have uniformly adhered, apply to the issue presented by this proceeding:  (1) that each and every section of a legislative enactment must be given meaning, and (2) where general powers are granted with specific powers enumerated, the general powers are modified, limited, and restricted to the extent of the specific enumeration.  Groves v. Meyers, 35 Wn. (2d) 403, 213 P. (2d) 438 (1950); State v. Thompson, 38 Wn. (2d) 774, 232 P. (2d) 87 (1951);Public Hospital Dist. No. 2 of Okanogan County v. Taxpayers of Public Hospital Dist. No. 2 of Okanogan County, 44 Wn. (2d) 623, 269 P. (2d) 594 (1954); 50 Am. Jur. 244, 249; 82 C.J.S. 658, § 332.

            "If, as appellant contends, cities of the third class, by RCW 35.24.300 ,supra, havegeneral power to lease, sublease, convey or otherwise dispose of their real estate, then the remainder of the quoted portion of the section, which authorizes specific types of leases, is surplusage and meaningless.  By this section, the power of a city of the third class to lease its municipally-owned lands is limited to (1) waterfront property to be used for the purposes of manufacturing, etc., and (2) property to be used for wharves, docks, and other navigation purposes.

            "The legislative grant to lease municipally-owned  [[Orig. Op. Page 4]] property, as provided by RCW 35.24.300,supra, is ambiguous and requires judicial interpretation.  Thegeneral and specific powers above enumerated are all contained in a single sentence.  In order to give the entire sentence meaning and to retain the limited types of leases which the legislature specifically authorized cities of the third class to execute, the general grant of power must yield in its scope to the specific powers enumerated."

            It is difficult in a given case to conclude that a proposed use of property does or does not constitute a "common benefit."

            This is a factual rather than a legal question and one that this office is not equipped to answer.  While we are of the opinion that under the facts as you have presented them this transaction, taken as a whole, would enure to the common benefit, the term "common benefit" is uncertain of definition.  It is conceivable that the court, presented with this question by a legally interested party, would determine that this transaction is not for the common benefit, in that a portion of the property would be utilized for a strictly private purpose, i.e., the construction and maintenance of a lodge building.

            Assuming, without deciding, that the disposition of this property as proposed is for the "common benefit" within the meaning of the statute, we are of the opinion that RCW 35.24.010 authorizes the sale of the property.  However in view of the unequivocal language of the majority opinion of theMiller case, supra, the city is not permitted under the present law to lease municipally-owned property to the Elks Lodge for the purposes intended.

            We hope the foregoing will be of assistance.

Very truly yours,

Attorney General

Assistant Attorney General