HIGHWAY DEPARTMENT ‑- WHETHER IT IS WITHIN THE POWERS OF THE DIRECTOR OF THE DEPARTMENT OF HIGHWAYS TO SEND PERSONNEL OF THE DEPARTMENT TO SCHOOL TO PURSUE A COURSE OF STUDY IN THE MAINTENANCE AND...

HIGHWAY DEPARTMENT ‑- WHETHER IT IS WITHIN THE POWERS OF THE DIRECTOR OF THE DEPARTMENT OF HIGHWAYS TO SEND PERSONNEL OF THE DEPARTMENT TO SCHOOL TO PURSUE A COURSE OF STUDY IN THE MAINTENANCE AND CONSTRUCTION OF HIGHWAYS, AND PAY SUCH PERSONNEL THEIR SALARY AND EXPENSES, WITH ONLY A MORAL OBLIGATION BINDING THEM TO RETURN TO THEIR REGULAR DUTIES IN THE DEPARTMENT OF HIGHWAYS

The highway commission, through the director of highways, in the furtherance of its powers and duties may send personnel of the highway department to school to pursue courses of study on the subjects of the construction and maintenance of highways, and the details of such an objective are within the sound discretion of the members of the commission and the director of highways.

                                                                   - - - - - - - - - - - - -

                                                                  August 6, 1952

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 367

Attention:  C. W. Yoakum

Dear Sir:

            In your letter of July 1, 1952, you request our opinion as to whether it is within the powers of the director of the department of highways to send personnel of the department to school to pursue a course of study in the maintenance and construction of highways, and pay such personnel their salary and expenses, with only a moral obligation binding them to return to their regular duties in the department of highways.

            Our conclusion may be summarized as follows:

            The highway commission, through the director of highways, in the furtherance of its powers and duties may send personnel of the highway department to school to pursue courses of study on the subjects of the construction and maintenance  [[Orig. Op. Page 2]] of highways, and the details of such an objective are within the sound discretion of the members of the commission and the director of highways.

                                                                     ANALYSIS

            It is well recognized that the only authority and power of state officers are those which have been prescribed by our Constitution and statutes, and they have only such powers as have been granted in express words, or those which may be implied from, incidental to, or necessary to the carrying out of the powers expressly granted.

            In resolving the above question it is necessary to set out certain statutes which delineate the powers and duties of the highway commission and the director of highways:  RCW 43.27.110 (§ 7, chapter 247, Laws of 1951) provides:

            "On and after July 1, 1951, the state highway commission shall take over, assume and exercise all of the powers, authority and functions and perform all of the duties now vested in or required to be performed by the director of highways and the department of highways.  Thereafter the state highway commission shall assume and exercise full and complete jurisdiction and authority over the administration of the state highways and all matters connected therewith or related thereto as hereinabove set forth in RCW 43.27.100.  The state highway commission shall establish such rules and regulations as may be deemed wise and lay down policies of procedure and generally supervise and control the operation of said functions within the terms of RCW 43.27.070 to 43.27.200, inclusive, and pursuant to the laws of this state, and the said commission is hereby clothed with all necessary powers to carry out the terms of said sections."

            RCW 43.27.100 (§ 4, chapter 247, Laws of 1951), provides:

            "The state highway commission is hereby vested with all powers, authority, functions and duties now vested in or required to be performed by the director of highways or the state department of highways.  Full and complete jurisdiction and authority over the administration of state highways  [[Orig. Op. Page 3]] and all matters connected therewith or related thereto is hereby granted the said state highway commission except only in so far as the same may have been heretofore or may be hereafter specifically granted to the director or department of licenses, the public service commission, the state commission on equipment, the Washington state patrol or its chief, the Washington toll bridge authority, or the governing bodies of cities and towns."

            RCW 43.27.150 (§ 9, chapter 247, Laws of 1951), provides:

            "The state highway commission shall select and appoint the director of highways who after appointment shall be an ex officio member of the commission without a vote.  He shall be the chief executive officer of the commission responsible only to it, and shall carry into effect the commission's order and shall be guided by policies laid down by it.  As the executive head, he shall direct all activities and supervise the work of the staff of the department."

            The powers and duties of the director of highways which have been assumed by the state highway commission pursuant to RCW 43.27.110, supra, are set out in RCW 43.27.020.  RCW 43.27.020 (§ 3, chapter 53, Laws of 1937) provides insofar as it is pertinent to this question:

            "The director of highways shall:

            "* * *

            "* * * investigate and determine upon various methods of highway construction adaptable to different sections of the state; investigate and determine the best methods of construction and maintenance of highways, roads and bridges; gather and compile such other information relating thereto as shall be deemed appropriate, * * *."

             [[Orig. Op. Page 4]]

            It is apparent that the power in question has not been given in explicit terms and if the power is vested in the highway commission it must be implied from a general grant of power.

            In regard to implied powers our Supreme Court has stated:

            "* * * Even though a power may not be expressly given in specific words, if its existence is reasonably necessary in order to effectuate the purposes intended, such power may be implied.  State ex rel. Hunter v. Superior Court, 34 Wn. (2d) 217, 208 P. (2d) 866,State ex rel. School District No. 56 v. Superior Court, 69 Wash. 189, 124 Pac. 484.  * * * "

            InState ex rel. Taylor v. Superior Court, 2 Wn. (2d) 575, 98 P. (2d) 985, the court said:

            "* * * It is a well recognized rule that a general grant of power or statutory direction to perform official duties, unaccompanied by definite directions as to how the power is to be exercised or the duty performed, implies the right and duty to employ the means and methods necessary to comply with the statutory requirements.  * * *"

            In Sutherland's Statutory Construction, Vol. 3, § 5402, page 19, the rule is stated as follows:

            "Where a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included by implication.  Thus, it has been stated, 'an express statutory grant of power or the imposition of a definite duty carries with it by implication, in the absence of a limitation, authority to employ all the means that are usually employed and are necessary to the exercise of the power or the performance of the duty.  * * * That which is clearly implied is as much a part of the law as that which is expressed.'"

             [[Orig. Op. Page 5]]

            The reason behind the rule is to be found in the fact that legislation is enacted to establish broad or general standards.  Matters of minor detail are frequently omitted from legislative enactments, and, "if these could not be supplied by implication the drafting of legislation would be an interminable process and the true intent of the legislature likely to be defeated."

            The rule whereby a statute is by necessary implication extended has been frequently applied in the construction of laws delegating powers to public officers and administrative agencies.  The powers thus granted involve a multitude of functions that are discoverable only through practical experience.

            (The test to be applied in cases of this character would seem to be whether the power is "reasonably necessary to effectuate the purposes intended", which is a portion of the rule inState ex rel. Hunter v. Superior Court,supra.

            The purposes to be served by the sending of highway personnel to school would be in furtherance of the duty imposed upon the highway commission by RCW 43.27.020, subsection 8, i.e., "To investigate and determine upon various methods of highway construction adaptable to different sections of the state; to investigate and determine the best methods of construction and maintenance of highways, roads and bridges."

            The question then is whether sending qualified highway department personnel to such a school isreasonably necessary to enable the highway commission to effectually perform the duties imposed by the statute.  It is significant that the legislature has used the terms "best methods" in the statute; therefore, it would seem that the legislature contemplates that the highway commission shall have sources of information to enable them to investigate and determine upon such methods of highway construction and maintenance.

            It would seem that the sending of highway personnel to a school which has a faculty trained in problems of highway construction and maintenance and with facilities enabling them to engage in a program of extensive research into the many intricate questions incident to modern highway transportation, along with the opportunity which is afforded to exchange ideas with others experienced with the subject, would be a way of investigating which would be entirely consistent with, and reasonably necessary in order to carry out the purpose as evidenced by the statute.

             [[Orig. Op. Page 6]]

            It is a well recognized rule that an express grant of power which does not outline the manner in which it is to be exercised, is left to the discretion of those in whom the power is vested, and such discretion will not be disturbed unless there is bad faith, or manifest abuse of power.

            We therefore conclude that the highway commission, through the director of highways, may in the furtherance of its powers and duties send personnel of the highway department to school to pursue courses of study on the subject of the construction and maintenance of highways, and further, that the details of such an objective are within the sound discretion of the members of the commission and the director of highways.

Very truly yours,

SMITH TROY
Attorney General