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Bob Ferguson

AGO 1954 No. 313 -
Attorney General Don Eastvold


A county has no legal authority to gratuitously surface a town street.

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                                                               September 8, 1954

Honorable Thurman E. Ward
Prosecuting Attorney
Klickitat County
Goldendale, Washington                                                                                                              Cite as:  AGO 53-55 No. 313

Dear Sir:

            We are in receipt of your letter requesting an opinion on the following question:

            Does a county have the authority to surface a street leading to a county hospital, entirely within the limits of a town, at the expense of the county?

            Our answer is in the negative.


            The roadway in question must be treated as a "city street" as defined in RCW 36.75.010 (4):

            "* * * every public highway or part thereof, located within the limits of incorporated cities and towns, except alleys."

            There is no statute permitting it to be treated in any other manner merely because a county hospital is located thereon.

            The control over all public ways is vested in the state.  The legislature may  [[Orig. Op. Page 2]] delegate the power of control over streets to a local governing board or body, and where it has been so delegated, the scope of such power is measured by the statute.  McQuillin Municipal Corporations, (3rd ed.) § 30.39.  City streets are usually controlled by the municipal, rather than by the county, authorities, unless the applicable law otherwise provides.  McQuillin, supra, § 30.42.

            Counties are agencies of the state, acting through the board of county commissioners, and as such have no powers except those expressly conferred by the constitution and by statute, or those powers which are reasonably or necessarily implied from granted powers.  Thus, a granted power cannot be extended into territory other than that specified by the legislature.  Green v. Okanogan County, 60 Wash. 308; Sasse v. King County, 196 Wash. 242; State ex rel. Taylor v. Superior Court, 2 Wn. (2d) 575.

            RCW 36.32.120 provides:

            "The several boards of county commissioners shall:

            "* * *

            "(2) Lay out, discontinue, or alter county roads and highways within their respective counties, and do all other necessary acts relating thereto according to law, except within cities and towns which have jurisdiction over the roads within their limits; * * * "

            RCW 35.27.370 (4) gives towns complete control over the public roads and highways within their limits, including the express power to surface them.  It is therefore our opinion that the general power to expend funds on county roads does not confer authority to expend funds upon city streets.

            In order for county jurisdiction to be extended within the limits of an incorporated town under special circumstances there must be some specific act of the legislature broadening the general power given.  State ex rel. Suksdorf v. Superior Court, 169 Wash. 195.  There is no valid constitutional or policy objection to a county giving its funds or aid to another unit for a public improvement to any extent it may, by statute, be authorized so to do.  Foster v. Commissioners of Cowlitz County, 100 Wash. 502; 38 Am.Jur. 93, § 401.  There is no special statute allowing a county to gratuitously aid a town in the maintenance of its streets under the circumstances presented.

             [[Orig. Op. Page 3]]

            We might point out, however, that RCW 36.82.070 and RCW 47.24.040, dealing with the amounts accruing to towns and counties in the state motor vehicle fund, allow expenditures from that fund to be made either independently or in conjunction with the state or a county or town.  If it is a situation where the county comes to the aid of a town, RCW 47.24.050 provides, in part as follows:

            "The city or town may, by resolution, authorize the board of commissioners of the county in which it is located, to perform any such construction, repair or maintenanceand the same shall be paid for by the city or town at the actual cost thereof as provided for payment for work performed on city streets, and any payment received therefor by a county shall be deposited in the county road fund to be expended under the same provisions as are imposed upon the funds used to perform such construction, repair or maintenance."  (Emphasis supplied)

            This statute serves to bear out our conclusion that it is the intent of the legislature that a county should not aid in the improvement of a street wholly within the limits of a town, unless the town assumes the obligation to pay therefor.

Very truly yours,

Attorney General

Assistant Attorney General