Washington State

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Attorney General

Bob Ferguson

AGO 1956 No. 290 -
Attorney General Don Eastvold


Existing state law presents no legal impediment to the location by the capitol committee of the proposed state library (1) on the site of the parking lot immediately south of the present Social Security Building, or (2) on one of the lots directly east of the Labor & Industries Building and west of Capitol Way.

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                                                                   June 26, 1956

Honorable Carlton I. Sears
State Senator, 22nd District
2412 South Columbia
Olympia, Washington
Honorable Maryan E. Reynolds
State Librarian
Temple of Justice
Olympia, Washington                                                                                                              Cite as:  AGO 55-57 No. 290

Dear Senator Sears and Miss Reynolds:

            By separate letters, each dated June 7, 1956, you have requested information on a number of matters peripheral to one basic issue, which we paraphrase as follows:

            Does existing state law present any legal impediment to the location by the capitol committee of the proposed state library (1) on the site of the parking lot immediately south of the present Social Security Building, or (2) on one of the lots directly east of the Labor & Industries Building and west of Capitol Way?

            Our answer is in the negative.


             [[Orig. Op. Page 2]]                                                                        

            The history of the present capitol building plan was set forth by our supreme court inState ex rel. Wohleb v. Yelle, 196 Wash. 26, a case which will be discussed in detail later in this opinion.  It was there indicated that prior to 1911, the state capitol commission, a board established by statute, had general charge of the site for the proposed state capitol, and of all matters in connection therewith.  By § 1, chapter 20, Laws of 1909, Ex. Sess. (not included in the Revised Code of Washington, but previously codified as Rem.Rev.Stat. § 7905), the state capitol commission was given power, in the name of the state, to acquire by gift, donation, purchase or condemnation, for capitol building purposes, certain property adjoining the "old capitol site," which, many years before, had been given to the Territory of Washington for its capitol buildings.                                                    

            The legislature of 1911, by chapter 39, Laws of 1911, p. 319, fixed the powers of the commission, and by § 1 of the set (Rem.Rev.Stat. § 7906), provided,inter alia, for the acquisition of the land described by chapter 20, Laws of 1909, Ex. Sess., and for the use of such lands in conjunction with the lands already belonging to the state.

            "* * * for the erection and building thereon of a group or system of buildings for capitol purposes, * * * all of which grounds or land shall hereafter be known as 'Capitol Place:'"

            By the same section, the construction of the Capitol Building and the Temple of Justice was authorized.  Construction of still other buildings was referred to in the section, such buildings "to be grouped around and adjacent to said 'Capitol' and to be built from time to time as needed."

            By subdivision (E) of § 1 above referred to, the commission was directed to cause complete topographic and profile maps of the lands composing Capitol Place, and to receive ground plans for a group of buildings to be erected thereon.  It was provided that the commission might adopt a plan and do all things necessary to carry out the purposes and intent of the act.

            "* * * to the end that, as speedily as consistent with economy, suitable, adequate, and commodious buildings and grounds may be provided for official purposes, and that to this purpose, from time to time, new buildings, or additions to buildings theretofore constructed, except additions to the main building, may be constructed,  [[Orig. Op. Page 3]] all in accordance with a general plan, and so as not to interfere with the symmetry, grandeur, or architectural beauty of the whole system or group;"

            Thereafter, the commission received and considered a number of ground plans.  It accepted one prepared by a firm of New York architects, in accordance with which all of the existing buildings comprising the capitol group (with the exception of the Labor & Industries Building, formerly known as the Highway Building) have been erected.  A photostat of this ground plan is to be found in the file of the case of State ex rel. Wohleb v. Yelle, (No. 27263) kept in the office of the clerk of the supreme court.  This plan shows nothing occupying the plots with which we are concerned in this opinion.  Part, though not all, of the parking lot area behind the Social Security Building is shown as covered with sketches of trees; but sketches of trees are scattered broadside throughout the plan, on areas over which the capitol committee has no conceivable jurisdiction, and it is difficult to avoid the conclusion that as sketched, they represent nothing but decoration.

            By authority of § 1, chapter 165, Laws of 1923, the property on which the Labor & Industries Building now stands was required, and by authority of § 4, Chapter 32, Laws of 1933, Ex. Sess., the Labor & Industries Building was constructed thereon.  Though this latter act states that the structure should be built on "Capitol Place or Sylvester Plot" it does not specify the exact site.  This is of significance in view of the fact that on the original ground plan, this land contains no building.  It is occupied by trees and by small dots, which appear to indicate, though this is not entirely clear, a lawn.  Nevertheless, the capitol committee (which by virtue of § 8, chapter 7, Laws of 1921 had taken over the duties of the old capitol commission) appears to have made the decision to locate the building in its present site, without any further legislative authorization.

            In 1937, the legislature, by chapter 160, Laws of 1937, acquired the land behind the Social Security Building, now occupied by the parking lot.  The title to this act read, in pertinent part, as follows:

            "AN ACT relating to the acquiring of land by the state capitol committee for additions to Capitol Place in the City of Olympia, * * *"

             [[Orig. Op. Page 4]]

            The body of the act described the land in question as "adjoining the property now known as Capitol Place."  It is noteworthy that the act did not specify for what purpose the property was to be used.  The subsequent decision to make it a parking lot seems to have been made solely by the capitol committee.

            In its most recent session, the legislature passed chapter 279, Laws of 1955 (chapter 79.24 RCW, 1955 Supp.), § 7 (2) of which authorized the construction of a state library.  Section 7 (RCW 79.24.260 [1955 Supp.]) further reads as follows:

            "The improvements provided for in subsection (2) of this section shall be located either upon the present capitol grounds or upon lands contiguous thereto.  The capitol committee may select such lands and acquire them by purchase or condemnation.  As an aid to such selection, the committee may cause location, topographical, economic, traffic, and other surveys to be conducted, and for this purpose may utilize the services of existing state agencies, may employ personnel, or may contract for the services of any person, firm or corporation.  In selecting plans for the construction of the improvements authorized by this section and use of the grounds, the committee shall consider recommendations of the director of public institutions for the purpose of co-ordinating such plans with the over-all office space needs of the various state departments."

            We now pass to a consideration of the power of the capitol committee, acting under this law, to authorize the construction of a state library on a site not shown to be occupied by any building on the New York architect's original plan.

            There is no question but what the legislature can alter this plan at any time and in any manner that it may see fit.  The plan, as we have shown, was adopted pursuant to legislative action; further legislative action is all that is needed to amend it.  We are here only concerned with the power of the capitol committee to make the final decision as to the exact site of a new building without the legislature having pinpointed it in the authorizing act.

             [[Orig. Op. Page 5]]

            It would seem that even without the express legislative authority granted by chapter 279, Laws of 1955, the capitol committee has authority to make certain alterations in the capitol group plans.  As we have shown, this has apparently been done in the past; and that such actions were legally taken is clear from the provisions of RCW 43.34.030, providing as follows:

            "The state capitol committee may amend or modify any of the plans and specifications heretofore authorized or adopted, or adopt new plans and specifications for the location, construction, and completion of buildings on the state capitol site and may advertise for competitive plans."

            In the present instance, however, reliance need not be placed on this statute.  By an express law‑-RCW 79.24.260 (1955 Supp.)‑-which could hardly be couched in more effective language, the legislature has declared that the library may be placed "either upon the capitol grounds or upon lands contiguous thereto."  Since a library could not be placed "upon the capitol grounds" without altering the New York architect's original plan‑-which includes no provision for a library ‑-there can be no reasonable doubt but that the legislature intended to empower the capitol committee to select a site which would not accord with that plan, and would, in effect, amend it.

            This is not to say that the committee may now select some manifestly absurd location, such as, for example, the site of the present capitol building.  Such a choice would open it to the charge that it had acted arbitrarily, capriciously, and in excess of its authority.  But for it to select a site occupied only by a parking lot, which was built not as a result of legislative direction, but by virtue of the capitol committee's own prior decision, would scarcely be such an arbitrary and capricious act as would be illegal.  And, of course, under the act's authorization to purchase lands "contiguous" to the capitol grounds, one of the lots east of the present Labor & Industries Building and west of Capitol Way may be selected, purchased, and used for the library without any further legislative action whatever.

            Bearing strongly upon this question is the decision of the Washington state supreme court in the case ofState ex rel. Wohleb v. Yelle, 196 Wash. 26.  The impact of that case upon the present issue was discussed in a letter from Mr. E. Albert Morrison of this office to Miss Maryan Reynolds, dated February 4, 1955.  With the present opinion, we affirm the views expressed in that letter.

             [[Orig. Op. Page 6]]

            The precise holding of theState ex rel. Wohleb v. Yelle case is set forth with succinctness in the RCW annotation to RCW 43.34.030, which reads as follows:

            "When legislature directs where buildings are to be constructed, capitol committee may not change location."

            InState ex rel. Wohleb v. Yelle, the capitol committee had proposed to construct a new office building on a portion of the capitol grounds presently occupied by the totem pole.  The legislature had granted authority to build the building, but had not been specific as to the proper site.  The authorization, contained in chapter 230, Laws of 1937, p. 1194, merely appropriated the necessary money for

            "Construction of additional unit to the capitol group, including preparation of site and removal of old buildings. . . ."

            Though no site was mentioned, the use of the words "removal of old buildings" strongly suggested that the legislature did not have in mind the site the capitol committee had chosen.  As is not the situation in the present case, the capitol committee had been granted no express authority to select a site.  Had the capitol committee been given such authority, there would have been no justification for questioning its action.

            The court held that in view of the fact that the legislature had indicated that the new building was to be an "additional unit to the capitol group," it must have been the legislative intent to have the structure built in accordance with the original plan.  Consequently, it concluded that the capitol committee had exceeded its authority in selecting a different site.  It will readily be seen that this situation presents no parallel to the present case.

            In conclusion, it would seem that the original plan for the capitol grounds did not include either the parking lot site, or the lots east of the Labor & Industries Building and west of Capitol Way; and that this being so, the question of the capitol committee's power to amend the original plan need not arise, if these sites alone are involved.

             [[Orig. Op. Page 7]]

            It would seem further that even if these sites should be considered as part of the original plan, the capitol committee might well be empowered to use one of them for a library, even without specific authorization in the act, since the original plan contemplated no library site whatever, and the committee by the terms of RCW 43.34.030 has broad authority to alter the plan.

            But at all events, neither of these points need be stressed here.  In the present instance there can be no question of the committee's authority to choose one of the sites, in view of the unequivocal language of § 7, chapter 279, Laws of 1955 (RCW 79.24.260, 1955 Supp.), which states plainly that the capitol committee may "select and acquire, by purchase or condemnation," a site "either upon the present capitol grounds or upon lands contiguous thereto."

            We hope the foregoing will prove helpful.

Very truly yours,

Attorney General

Assistant Attorney General