Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1958 No. 195 - May 15 1958
Attorney General John J. O'Connell





1. A portion of state highway abandoned by the state of Washington and certified to a county must be maintained by the county.

2. The county commissioners are authorized to exercise discretion in determining whether or not any particular road can be kept free of snow all winter.

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                                                                   May 15, 1958

Honorable W. R. Cole
Prosecuting Attorney
Kittitas County Court House
Ellensburg, Washington                                                                                   Cite as:  AGO 57-58 No. 195

Dear Sir:

            This is in answer to your request for an opinion from this office on two questions which we paraphrase as follows:

            1. Must Kittitas county maintain the one‑mile segment of old PSH # 2 which runs from the summit of Snoqualmie Pass to Hyak, Washington?

            2. If so, must it be kept free of snow during the winter months?

            We answer your first question in the affirmative and the second question in the negative.

             [[Orig. Op. Page 2]]


            The factual situation with which you are concerned is as follows:  A one‑mile portion of PSH # 2 which runs between the summit of Snoqualmie Pass to Hyak was abandoned by the state of Washington and certified to the county commissioners in January 1941, and again in January 1952, pursuant to RCW 36.75.090.  The only development of the area abutting that portion of the highway has been for cabins which are primarily used in winter months by skiers.  There are no other county roads in the vicinity and the nearest county road that is maintained by Kittitas county during the winter months is approximately twenty-two miles east of this segment of road.  Apparently this road has never been maintained by Kittitas county nor has the county ever used snow plows on the road.  The only way in which the county could keep the road free of snow would be by an agreement with the state of Washington, under the provisions of RCW 36.75.030, whereby the state highway department would undertake to use snow plows approximately one and one‑half times a week for an agreed compensation.  The cost of such an agreement to the county is estimated at $350 per month for the five‑month period.

            RCW 36.75.090 referred to above provides specifically as follows:

            "All public highways in this state which have been a part of the route of a state highway and have been or may hereafter be no longer necessary as such shall, upon certification thereof by the director to the board of the county in which any portion of such highway is located, be and become a county road of such county, and upon such certification the director may certify to the governor the abandonment of such highways, giving the description thereof, and the governor may execute and the secretary of state shall attest and deliver to the county a deed of conveyance on behalf of the state to such abandoned highways or portions thereof."

            The decisions of our state supreme court and the prior opinions of this office indicate that:

            (1) The county must accept segments of state highways and bridges which are transferred to it pursuant to RCW 36.75.090.  AGO 53-55 No. 131 [[to Cliff Yelle, State Auditor on September 10, 1953]].       (2) After a segment of state highway has been transferred to the county pursuant to RCW 36.75.090, the duty of maintaining it in a reasonably safe condition for public travel devolves on the county.  Schinaman v. Skamania County, 23 Wn. (2d) 904, AGO 49-51 No. 384 [[to Wilbur G. Hallauer, State Representative on November 17, 1950]], AGO 53-55 No. 307 [[to W. A. Gissberg, State Senator on August 26, 1954]].

             [[Orig. Op. Page 3]]

            The duty of the county to maintain the road is set forth in RCW 36.75.020, which reads as follows:

            "All of the county roads in each of the several counties shall be established, laid out, constructed, altered, repaired, improved, and maintained by the board of county commissioners of the respective counties as agents of the state."

            In addition, RCW 36.32.120 (2) 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;"

            This office has interpreted these statutory provisions as imposing a mandatory duty upon the county commissioners to keep such county roads as are necessary for public convenience and public travel in a reasonably safe condition.  See opinion of June 2, 1944, to the prosecuting attorney of King county [[1943-44 OAG 244]]; opinion of October 9, 1947, to the prosecuting attorney of Whitman county [[1947-48 OAG 66d]]; and opinion of September 10, 1953, to the state auditor [[AGO 53-55 No. 131]].

            Accordingly, we think it is clear that the one‑mile strip of road referred to above, which was abandoned by the state and certified to the county commissioners, is now a part of the county road system.  The question then resolves itself into a determination of the duty of the county commissioners of any county to maintain any and all county roads within the county in a reasonably safe condition at all times, with particular reference to the matter of keeping roads free of snow in the winter.

            The only case in point isState ex rel. Good Hope Gold Etc. Co. v. Morgan, 117 Wash. 214, which was a mandamus action brought to compel a board of county commissioners to repair a county road.  The court cited a statutory provision (Rem. Code § 5575) which provided that county commissioners must "cause to be opened and worked such roads as are necessary for public convenience."  In interpreting the words "as are necessary for public convenience," the court stated at pp. 216-17, as follows:

             [[Orig. Op. Page 4]]

            ". . . Without deciding, it will be assumed that the duty of opening and working roads is ministerial in its nature and in a proper case the commissioners may be required to perform such duty by writ of mandamus.  The statute, however, goes further and only makes it the duty of the commissioners to open and work roads which are necessary for public convenience.  The determination of the question as to whether the improving of a road is necessary for public convenience necessarily involved the exercise of a discretion.  Among things which the commissioners should take into consideration would be the needs of other roads in the county, the cost of the improvement, the practicability of reconstructing the road, the extent of the use of it were it repaired, the amount of funds available, and so forth. . . .

            "Taking into consideration all the facts in the record, which have been given careful attention, we are in accord with the opinion of the trial court that the commissioners in failing to improve and reconstruct the road did not act in an arbitrary manner, but that, under the facts, they should not be required by mandamus to do the work which is sought to be required of them in this action. It cannot be said that the commissioners arbitrarily or capriciously refused to repair a road which was necessary for public convenience."

            For a discussion of the use of mandamus against a municipality to compel improvement or repair of a street or highway, see the annotation in 46 A.L.R. 257.

            In exercising the discretion vested in the county commissioners to determine whether a road is necessary for public convenience and so must be maintained, there are many factors which the county commissioners may take into consideration.  One factor is that presented by the limitation of road funds under the county budget law in chapter 36.40 RCW.  For example, RCW 36.40.100 limits the expenditure of funds and the incurring of liabilities to the amount appropriated in the annual budget.  Further, RCW 36.40.110 provides that:

            "In addition to the above limitations, neither the county commissioners nor any other county official shall make any expenditure or incur any liability, except for emergencies of the kind specified in RCW 36.40.180, for any purpose for which the county road fund may be properly expended in any amount  [[Orig. Op. Page 5]] in excess of eighty percent of the amount of the taxes levied for collection during the current fiscal year for such fund until the cash receipts from taxation or otherwise during the current fiscal year paid into the fund shall exceed such eighty percent of the tax levy by an amount not less than the amount of expenditure or liability in excess of such eighty percent of the tax levy sought to be made or incurred."

            Emergency expenditures in excess of the budget are specifically authorized by RCW 36.40.140 and 36.40.180.  The latter section authorizes the board of county commissioners to make expenditures in the event of the happening of certain nondebatable emergencies.  In an opinion dated October 9, 1947, to the prosecuting attorney of Whitman County the attorney general ruled that expenditures for road maintenance and repairs would qualify as mandatory expenditures under the provisions of RCW 36.40.180.  However, this opinion is not authority for the proposition that the county is legally obligated to maintain the particular road in question in any particular way or to expend funds without regard for the financial condition of the county road fund.

            Thus, the duty of the commissioners to maintain county roads, and specifically, as in this instance, to keep them free of snow during the winter months, is not an absolute one.  There exists a definite distinction, in our opinion, between the statement that there is a mandatory duty upon the county commissioners to keep such roads as are necessary for public travel and convenience open and in a reasonably safe condition, and the insistence on the part of the county resident that a particular road or segment of road be kept free of snow all winter or maintained in any other way as determined by the individual.  The inherent authority and discretion to determine which roads are necessary for public travel and convenience and thus must be maintained rests with the board of county commissioners alone.

            Another factor is presented by the provisions of RCW 46.68.120, which prescribe the distribution of moneys in the motor vehicle fund allocated to counties.  The act places emphasis upon the so-called "county trunk highways" which are defined as: ". . . county roads regularly used by school buses and/or rural free delivery mail carriers of the United States post office department, . . ."

            It is our understanding that the boards of county commissioners of almost every county give primary attention to the so-called "county trunk highways" in the matter of maintenance and more particularly in the assignment of  [[Orig. Op. Page 6]] snow plows and other such equipment during the winter months.  In those counties where the snow-removing equipment is not adequate to keep all roads clear, the roads which are used by school buses and rural mail carriers are of first importance and are plowed before the equipment is used on other county roads.

            Another factor which the board might properly consider is the cost involved in maintaining the particular road in relation to the number of persons benefited and the available funds in the county budget for road maintenance.

            We conclude, therefore, that the determination of whether or not a particular county road is necessary for public travel and convenience, and accordingly must be maintained and kept open at all times, is one which rests within the discretion of the board of county commissioners.  If the board determines that the road in question is not necessary for public travel and convenience during the winter months, and its action is not arbitrary or capricious, the county is not required to keep the one‑mile segment of road free of snow during the winter months.

            We trust the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General