AGO 1953 No. 130 - Sep 10 1953
LOG PATROL ‑- LICENSES ‑- COLUMBIA RIVER ‑- BONDS ‑- ASSOCIATIONS ‑- BOOM COMPANIES ‑- PAYMENT
1. The log patrol act as amended by the 1953 legislature is applicable to the waters of the Columbia river forming a common boundary between the states of Washington and Oregon.
2. A log patrolman in the state of Oregon but not licensed in the state of Washington may not operate in waters of the Columbia river which forms a common boundary between Washington and Oregon.
3. Whether a log patrol association is an agent of an owner of logs such that it may operate without a log patrol license depends upon factual information concerning its methods of organization and operation not provided in your question.
4. A licensed log patrolman may not own and operate his own private nonincorporated boom company for the disposition of stray logs.
5. The log patrol act requires a bond from each log patrolman unless he be a bona fide agent of a licensee who is in fact in charge of the log patrol activities of the agent.
6. Advance partial or full payment to the log patrolman by the boom company for log patrol services is improper.
- - - - - - - - - - - - -
September 10, 1953
Honorable L. T. Webster
Division of Forestry
Department of Conservation & Development
Olympia, Washington Cite as: AGO 53-55 No. 130
Dear Mr. Webster:
You have requested our opinion on the following questions:
[[Orig. Op. Page 2]]
1. The Columbia River acts as a portion of the common boundary between the states of Washington and Oregon. Over what area of the river where it constitutes this common boundary do we have jurisdiction in connection with the administration and enforcement of the log patrol act?
2. Is it lawful for an Oregon company that is registered to do business in the state of Oregon only, to salvage stray logs in the Columbia River, including the Washington side thereof, without a log patrol license from the state of Washington?
3. Is it lawful for a log patrol association, composed of various lumber companies who own logs, to salvage stray logs belonging to members of the association without first securing a log patrol license?
4. Is it lawful for a licensed log patrolman to own his own non-incorporated boom company from which he sells salvage logs in accordance with the procedure set forth in the log patrol act?
5. Is it lawful for a log patrol company to post one bond as required by the log patrol act, and then include under its license a multitude of boats owned and operated by other individuals who have not furnished bonds?
6. Is it lawful for boom companies to make partial or full payment on stray logs to log patrolmen prior to their sale?
Answers to the respective questions may be summarized as follows:
1. All that portion of the river forming a common boundary between Washington and Oregon.
3. Additional facts are required.
[[Orig. Op. Page 3]]
Question No. 1. The boundaries of the State of Washington are defined by Article XXIV, paragraph 1, of the state constitution which provides in part:
"The boundaries of the state of Washington shall be as follows: Beginning at a point in the Pacific Ocean one marine league due west of and opposite the middle of the mouth of the north ship channel of the Columbia river thence running easterly to and up the middle channel of said river and where it is divided by islands up the middle of the widest channel thereof to where the forty-sixth parallel of north latitude crosses said river near the mouth of the Walla Walla river; thence east on said forth-sixth parallel of latitude * * * "
The boundaries of the state of Oregon are defined in the Act of Congress admitting Oregon into the Union (Act of February 14, 1859, 11 Stat. 383) and provides in part:
"Beginning one marine league at sea due west from the point where the forty-second parallel of north latitude intersects the same; thence northerly, at the same distance from the line of the coast, lying west and opposite the state, including all islands within the jurisdiction of the United States, to a point due west and opposite the middle of the north ship channel of the Columbia river; thence easterly, to and up the middle channel of said river, and, where it is divided by islands, up the middle of the widest channel thereof, to a point near Fort Walla Walla * * * "
[[Orig. Op. Page 4]]
In the case ofState of Washington v. State of Oregon, 211 U.S. 127 (1908), the supreme court of the United States determined that the boundary between the two states, where the Columbia river forms a common boundary, was the center line of the north channel, and, where divided by islands, the center line of the widest channel. This question was again raised inVeatch et al. v. White, et al., 23 F. (2d) 69 (1927), with a like decision.
RCW 76.40.020, as amended by section 9, chapter 140, Laws of 1953, provides:
"From and after June 11, 1953, it shall be unlawful for any person, firm, association, or corporation to directly or indirectly engage in the activities of a log patrolon or adjacent to the waters of this state, except as hereinafter provided." (Underlining supplied)
Adjacent is defined in Webster's New International Dictionary, second edition, 1949, as
"Lying near, close, or contiguous; neighboring; bordering on, as a field adjacent to the highway."
Those waters in the north channel of the Columbia river and the widest channel thereafter lying immediately to the north of the center line are waters of this state and those waters lying immediately to the south are "adjacent to the waters of this state" within the meaning of RCW 76.40.020, as amended. It appears that the legislature, by passing the 1953 amendment, intended to prohibit log patrol activities in those waters of the Columbia river forming a common boundary between Washington and Oregon, except by one who has complied with the log patrol act. That it may have this power see State v. Belknap, 104 Wash. 221, 176 Pac. 5.
The act of apprehending a violator, to be valid, must, however, occur within the boundaries of this state; that is, north of the imaginary center line forming the boundary.
Our conclusion is that you may require all log patrol activities as defined by RCW 76.40.010, section 1, occurring in those waters of the Columbia river forming a common boundary between Washington and Oregon to be licensed by the state of Washington. Enforcement is dependent, however, upon apprehending a violator within the boundaries of the state of Washington.
[[Orig. Op. Page 5]]
Question No. 2. The fact that an Oregon corporation, association, or person who is engaged in log patrol activities is licensed under the laws of the state of Oregon in no way mitigates from the necessity of complying with our license requirements when operating within those waters defined above. No exceptions of this type are provided in the act.
Question No. 3. RCW 76.40.010, section 1, provides:
"'Log patrol' includes all activities in connection with the recapture, repossession, and delivery to owners or to boom companies of stray logs in this state except activities by the owner of such logs, the transportation agency that towed or transported the booms or cargo from which such stray logs were lost, or any otherduly constituted agent of the owner;" (Underlining supplied)
Whether a log patrol association composed of various lumber companies who own logs may engage in the salvaging of stray logs belonging to members of the association without first securing a log patrol license depends on whether or not the association and its employees are duly constituted agents of the owners of the logs. To ascertain the relationship existing between such an association, its employees and the log owners requires an analysis of the methods of organization and operation of the association. Without further factual information the question cannot be answered.
Question No. 4. RCW 76.40.050, as amended, provides in part:
"All stray logs shall, whenever practicable, be returned to the owner or agent; otherwise theyshall be delivered to a duly platted boom company approved by the supervisor of forestry, * * *" (Underlining supplied)
RCW 76.28.020 provides in part:
"Anycorporation hereafter organized for the purpose mentioned in RCW 76.28.010 shall, within ninety days after its articles of incorporation have been filed, file in the office of the Secretary of State, a plat or survey * * * " (Underlining supplied)
[[Orig. Op. Page 6]]
With the exception of delivery to an owner or his agent, a log patrolman may only deliver to a duly platted boom company. No provision for filing a plat or survey, except as provided in RCW 76.28.020 for boom companies, exists in this state. Only a boom company which is a corporation may therefore file. A privately owned non-incorporated boom company cannot be platted and hence cannot engage in the disposition of stray logs pursuant to RCW 76.40.050.
In conclusion, a licensed log patrolman may not own and operate his own private non-incorporated boom company for purposes of disposing of stray logs pursuant to the act.
Question No. 5. RCW 76.40.030, as amended, provides in part:
"* * * Before any license may be issued the applicant must execute and file * * * a surety bond * * * Each application shall be accompanied by a remittance of one hundred dollars for each boat to be used or operated in such activities by the licensee or his agent."
Only those boats operated by the licensee or his agent may operate under the licensee's bonds. InMcCarty, et al. v. King County Medical Service Corporation, 26 Wn. (2d) 660, at page 680, our supreme court said:
"It is a familiar rule that a principal has control over the actions and conduct of his agent within the scope of the business being carried on by him."
and, on page 681, stated:
"Control is the vitally essential element in this relationship of principal and agent. * * *"
Any person operating a boat which is not subject to the control of the licensee in all phases of its log patrol operations would not be an agent within the definition above quoted. A bond posted by such a licensee would not afford protection to the public from the patrol operations of one over whom the license has no control. That individual is required to post his own bond.
In conclusion, a licensee may include in his license and bond only those boats over which he is, in fact, in control.
[[Orig. Op. Page 7]]
Question No. 6. RCW 76.40.050, as amended, provides in part:
"* * * The boom company with reasonable promptness shall sell such stray logs * * * and from the proceeds pay the log patrol for services performed. * * *" (Underlining supplied)
Payment to the log patrol for services performed is to be made from the proceeds of the sale; hence, prior to the sale there are no proceeds from which payment can be made. Partial or full payment for a log patrolman's services in advance of a sale would be contrary to the provisions above quoted.
In conclusion, partial or full payment to the log patrolman for services rendered may not be made prior to the sale of the stray logs.
Very truly yours,
E. ALBERT MORRISON
Assistant Attorney General