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Bob Ferguson

AGLO 1973 No. 85 - Jul 27 1973
Attorney General Slade Gorton

Except to the extent that it is authorized under RCW 36.54.010, et seq., to own and operate a ferry system, a 7th class county is not authorized to engage in the transportation business for hire.

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                                                                    July 27, 1973
Honorable Robert K. Leick
Prosecuting Attorney
Skamania County
Stevenson, Washington 98648
                                                                                                               Cite as:  AGLO 1973 No. 85
Dear Sir:
            By recent letter you have requested our opinion on the following questions:
            "(1) Does a seventh class county have the authority to engage in transportation business for hire?
            "(2) If a seventh class county does have this authority, may the county contract with a private nonprofit corporation to perform this service?
            "(3) May a county contract to have this service performed and provide that free service or reduced service charges be made to senior citizens, the sick, elderly or infirmed?
            "(4) Can such service be performed across county lines?"
            We respond to these questions in the manner set forth in our analysis.
            If your request pertained to a county which has adopted and is operating under its own "home rule" charter as provided for in Article XI, § 4 (Amendment 21) of our state Constitution, it would, in our judgment, be answerable in the affirmative.  Accord, our opinion of October 7, 1971, to the King county prosecuting attorney [[to Christopher T. Bayley, an Informal Opinion, AIR-71618]], copy enclosed, where we said:
            "This constitutional provision is substantially the same as Article XI, § 10, relating to 'home rule' charter cities, and, as you know, such cities have long been held to possess the same legislative authority within their territorial jurisdictions as is possessed by our state legislature itself ‑ subject only to subordination to conflicting acts of the  [[Orig. Op. Page 2]] legislature or conflicting provisions in our state constitution.  See, Winkenwerder v. Yakima, 52 Wn.2d 617, 328 P.2d 873 (1958), and cases cited therein.  We have no doubt that this rule is equally applicable to a home rule charter county under Article XI, § 4 (Amendment 21), supra, and therefore it is our opinion, in response to question (1) that through the enactment of an appropriate county ordinance, King county may establish a county transit system such as is envisioned by your proposal."
            However, as you know, in the case of any other class of county a different analytical approach is required.  Those counties not operating under their own charters1/ are vested with only those powers which have been granted to them by the state legislature, either expressly or by necessary implication.  Accord, Sasse v. King County, 196 Wash. 242, 82 P.2d 536 (1938), and numerous cases cited therein.  With this rule in mind as being applicable to a seventh class county such as Skamania,2/ we have searched all of the existing statutes relating both to counties and to public transportation systems and have found only one which may be said to authorize the operation of any form of public transportation by such a county.  We have reference to RCW 36.54.010, et seq., which relates, solely, to the operation of county-owned water ferry boats.
            There are, of course, various other statutes authorizing other categories of municipalities or political subdivisions ‑ specifically, cities and towns, and metropolitan municipal corporations ‑ to own and operate buses, transit facilities or the like.  See, RCW 35.92.060; RCW 35.95.010, et seq.; and RCW 35.50.050 (3).  None of these statutory authorizations, however, extends to counties of any class.  Therefore, assuming as we do from the general tone of your letter that the public transportation system your county commissioners have in mind is something other than a county-owned ferry system, we believe that your initial question must be answered in the negative ‑ thus rendering any further consideration of your remaining three questions unnecessary.3/
             [[Orig. Op. Page 3]]
            We trust that the foregoing will be of some assistance to you.
Very truly yours,
Attorney General
Deputy Attorney General
                                                         ***   FOOTNOTES   ***
1/And King county, at present, is the only county which has adopted such a charter.
2/See, RCW 36.13.010.
3/If the foregoing assumption is incorrect and you desire our further comments with respect to the use of a county-owned ferry system to provide transportation for senior citizens or the like, please advise and we will be happy to consider your remaining questions in this context.