Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1958 No. 159 - Feb 18 1958
Attorney General John J. O'Connell


A city may legally appropriate funds for the acquisition, operation, and maintenance of public restroom facilities, and may maintain such facilities on premises leased by the city for that purpose.  A city and county may not maintain such facilities in the city as a joint county-city function separate and apart from other joint operations expressly authorized by statute.

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                                                                February 18, 1958

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                  Cite as:  AGO 57-58 No. 159

Attention:    Mr. A. E. Hankins,Chief Examiner
                        Division of Municipal Corporations

Dear Sir:

            You have requested an opinion from this office with regard to the authority of a third-class city to provide public restroom facilities.  For convenience your questions are set out as follows:

            "(1) Can the City legally appropriate funds for the acquisition, operation and maintenance of such facilities on public property to which the public has access from the street?

            "(2) Can the City legally acquire, operate and maintain such facilities on premises leased by the City for that purpose?

             [[Orig. Op. Page 2]]

            "(3) Can the City and the County own, operate and maintain such facilities in the town as a joint County-City function?

            "(4) If the City and the County have this authority, jointly or severally, can it be considered a matter of public health which could be delegated to the respective health departments?"

            We answer Questions 1 and 2 in the affirmative and Question 3 in the negative.  An answer to Question 4 is rendered unnecessary.


            Supplementing the general grant of police power to municipal corporations, contained in Article XI, § 11, of the Washington State Constitution, RCW 35.43.040 confers the following specific authority:

            "Whenever the public interest or convenience may require, the legislative authority ofany city or town may order the whole or any part of any local improvement . . . to be constructed, . . ." (Emphasis supplied.)

            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; (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. Sup. Ct., 68 Wash. 660, 124 Pac. 127 (1912);Carpenter v. Okanogan County, 163 Wash. 18, 299 Pac. 400 (1931).

            Nowhere is there any express statutory power conferred upon municipalities to construct restroom facilities, so that if authority is found it must be in the last two criteria of the rule.  With this in mind, there is no difficulty in concluding that the power of a city to erect restroom facilities within its corporate  [[Orig. Op. Page 3]] boundaries is reasonably implied in or incidental to the powers expressly granted in RCW 35.43.040, supra.

            RCW 35.24.010 provides:

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

            Further, RCW 35.24.300 provides that:

            "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 . . ."

            Since we have concluded that the construction of public restroom facilities is properly within the powers of a third class city, the above legislation provides sufficient authority for the proposition that such a city could legally acquire, operate, and maintain such facilities on premises leased by the city for that purpose.

            The broadest general powers granted to counties, contained in RCW 36.01.010, are considerably more restricted than those conferred upon cities.  The foregoing statute provides that:

            "The several counties in this state shall have capacity as bodies corporate . . . to make such contracts . . . as may be necessary to their corporate or administrative powers, and to do all other necessary acts in relation to all the property of the county."

            If a county is to have power to provide public restroom facilities jointly with a city, within the limits of the city on property leased by the city for that purpose, the exercise of such power must be necessary to their corporate or administrative powers, or it must be expressly conferred.  State ex rel. Piper v. Pratt, 31 Wn. (2d) 725, 198 P. (2d) 814 (1948).

            Nowhere is such power expressly conferred.  Whether it is necessary to the exercise of other corporate powers depends on the nature and the scope of those powers.

            By general definition, counties are but arms or agencies of the state organized to carry out or perform some functions of state government as such instrumentalities derive their powers from the legislature.  State ex rel. Taylor v. Sup. Ct.,  [[Orig. Op. Page 4]] 2 Wn. (2d) 575, 98 P. (2d) 985 (1940);Spokane County v. Certain Lots in Spokane, 156 Wash. 393, 287 Pac. 675 (1930);Carpenter v. Okanogan County, supra; 14 Am.Jur. 188, § 5.

            Cities and counties are generally distinguished on the ground that all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the state and are only a branch of the general administration of that policy.  Cities are created chiefly for the interest, advantage, and convenience of their inhabitants.  By its very definition a county does not have such an interest in an activity which relates almost exclusively to the needs of the inhabitants of a particular city rather than the county at large, which would justify engaging in such activity without express legislative authority.

            Further, the supreme court of this state has adopted the rule that two municipal corporations may not exercise the same governmental functions in the same territory at the same time.  Public Utility District No. 1 of Pend Oreille County v. the Town of Newport, 38 Wn. (2d) 221, 228 P. (2d) 766 (1951).  Where the municipal activity in question is the result of an exercise of a power of franchise conferred upon it for the public good and not for a private corporate advantage, such activity has been held to be governmental rather than proprietary.  Russell v. Tacoma, 8 Wash 156 (1894);Hutton v. Martin, 41 Wn. (2d) 780, 252 P. (2d) 581 (1953).  Applying this definition, it is apparent that the erection of public restroom facilities is a governmental function.

            There is no justification for finding the power to do the acts in question as implied in any express powers, nor is such power necessary to the primary objects and purposes of county organization as a governmental subdivision of the state.  For this reason we must conclude that a county cannot own, operate and maintain public restroom facilities jointly with a city within the corporate limits of the city.

            This conclusion however must be restricted to the erection of restroom facilities separate and apart from buildings, the construction of which is expressly authorized by statute.  Authority has been specifically provided for the establishment of certain joint county-city enterprises, including the erection of public buildings and hospitals, and the maintenance of joint health departments.  Undoubtedly, where the county undertakes the erection of a public building jointly with a city, pursuant to chapter 36.64 RCW, the power to provide restroom facilities as necessary to its reasonable use by the public would be implied.

             [[Orig. Op. Page 5]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General