LEASE OF SUPPLEMENTARY WATER SUPPLY BY MUNICIPAL CORPORATION FROM A PRIVATE INDIVIDUAL

LEASE OF SUPPLEMENTARY WATER SUPPLY BY MUNICIPAL CORPORATION FROM A PRIVATE INDIVIDUAL.

A municipal corporation may lease a water supply from a private party in order to supplement existing water supply without the necessity of holding an election.

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                                                                 October 8, 1952 

Honorable W. R. Cole
Prosecuting Attorney
Kittitas County
Ellensburg, Washington                                                                                                             Cite as:  AGO 51-53 No. 413

 Dear Sir:

            You have inquired as to whether or not the Town of Kittitas could supplement its present water supply by leasing a supply from a private individual for a period of thirty years without an election.

                                                                      ANALYSIS

             The answer to your question depends upon an interpretation of RCW 80.40.010.  It is our opinion that this section includes the power to lease.  Its pertinent provisions read as follows:

             "Authority to acquire and operate waterworks.  A city or town may construct, condemn and purchase, purchase, acquire, add to, maintain, and operate waterworks, within or without its limits, for the purpose of furnishing the city and its inhabitants, and any other persons, with an ample supply of water for all purposes, public and private, including water power and other power derived therefrom, with full power to regulate and control the use, distribution, and price thereof:  * * *

              [[Orig. Op. Page 2]]

            "For such purposes any city or town may take, condemn and purchase, purchase, acquire, and retain water from any public or navigable lake or watercourse, surface or ground, and, by means of aqueducts or pipe lines, conduct it to the city or town; * * *."

             An analogous question dealing with the propriety of leasing a privately owned plant for the distribution of electric energy was presented to this office in 1928, when the present RCW 80.40.010 appeared as Rem. Comp. Stat., § 9488.  Inasmuch as the authorities mentioned therein are still apropos to the instant question, we quote extensively therefrom as follows:

             "In our opinion the grant of power to 'purchase' includes the power to lease.  'Purchase,' in its broad sense, 'includes every lawful method of coming to an estate by the act of the party as opposed to the act of law.'  Stone v. Tax Commissioner, 126 N.E. (Mass.) 371.  It accordingly embraces every mode of acquisition except by inheritance.  Bennett v. Hibbert, 55 N.W. (Ia.) 93.  See also, People v. Cockrill, 216 Pac. (Cal.) 78 and Treadwell v. Beebe, 190 Pac. (Kan.) 768.  While there is some authority to the effect that the estate contemplated by a 'purchase' is one in fee simple or a freehold (Re. Hunter, 1 Edw. (N.Y.) 1, Hurst v. Dippo, Law Ed. 18), there are other equally convincing cases to the contrary.  InHackett v. Emporium Borough Sch. Dist., 24 Atl. (Pa.) 627, it was said:

             "'The legal meaning of the word "purchase" includes all modes of acquisition except that by descent.  A lessee is a purchaser as truly as he who becomes grantee in fee.  The difference is in the estate acquired.  The estate of the former is a leasehold; of the latter a freehold; but the mode of acquisition is by purchase in both cases.'

             [[Orig. Op. Page 3]]

            "In Galloway v. Road Imp. Dist., 220 S.W. (Ark.) 450, it was held that a statute authorizing the purchase of road machinery was broad enough to authorize the leasing thereof on the theory that the broader power would include the lesser.  The court said:

             "'The authority to purchase being the greater of the powers to be exercised, necessarily included the lesser power to lease or to accept as a donation.'

             "In Hagus v. Simpson, 99 Mass. 388, it was held that purchase included a hiring with the option to buy.

             "The statute, moreover, uses the word 'acquire' which though in a measure synonymous with purchase is broader in scope.  It implies the obtaining of a thing by any means.  Anchor Inv. Co. v. Columbia Elec. Co., 63 N.W. (Minn.) 1109.  The addition of the word 'acquire' after the word 'purchase' in the statute seems to us an indication that the legislature intended a broad rather than technical construction.

             "The real difficulty encountered in construing the section is found in the language relating to street railways which empowers cities and towns to 'construct, condemn and purchase, purchase, acquire, add to, maintain, operate or lease cable, electric or other railways.'  As the statute was enacted by chapter CXII, Laws of 1897, p. 326, the grant with respect to power and light plants and street railways was the same in each instance, being to 'construct, condemn and purchase, purchase, acquire, add to, maintain and operate.'  By the amendment of 1909 (ch. 150, L. 1909, p. 580) among other things the section was amended by inserting the words 'or lease' in the clause pertaining to street railways.

              [[Orig. Op. Page 4]]

            "No doubt this might be accepted as a legislative recognition that a lease is not included within the term 'purchase,' because if it were there would have been no necessity for the amendment expressly conferring power to lease; but it seems to us that such a construction is too narrow.  The only explanation of the lease amendment of 1909 that we can think of is that the legislature had been asked to clear up all ambiguity and make assurance doubly sure in the case of street railways by some city or town which desire to lease such a utility."

             The emphasized portion of the above quotation deserves reiteration inasmuch as RCW 80.40.014 (§ 1, ch. 39, Laws of 1951) used the word "lease" in authorizing the acquisition of out-of-state waterworks.  The argument in support of a contrary position is thus made more persuasive by the 1951 addition of this section, since the contention that "when the legislature means lease it knows how to say it" has been given recent rebroadcast therein.

             Nevertheless it is thought that the broader interpretation is the correct one and it is so held.  It is our opinion that the Town of Kittitas may supplement its present water supply by leasing a supply from a private individual for a period of thirty years without holding an election.

             It is to be noted that inasmuch as your inquiry states that the proposed lease is to "supplement their present water supply," the election procedure outlined by RCW 80.40.070 is inapplicable.  That section states in part:

             "* * * and the ordinance shall be submitted for ratification or rejection to the voters of the city or town at a general or special election, except in the following cases where no submission shall be necessary:

             "(1) When the work proposed is an addition to, or betterment of, or extension of, or an increased water supply for, existing waterworks, or an addition, betterment, or extension of an existing system or plant of any other public utility for which  [[Orig. Op. Page 5]] no general indebtedness is to be incurred by the city or town;" (Emphasis supplied.)

Very truly yours,
 SMITH TROY
Attorney General

FRANK J. CONWAY
Assistant Attorney General