PUBLIC UTILITY DISTRICTS

PUBLIC UTILITY DISTRICTS

A municipality may not condemn the property of a public utility district.

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                                                                 October 5, 1950

Senator Corwin P. Shank
Route 1, Box 344
Kirkland, Washington                                                                                                                                                 Cite as: AGO 49-51 No. 357

Dear Sir:

            Receipt is acknowledged of your letter of September 26, 1950, in which you ask the following questions:

            "1. May a municipal corporation (Kirkland) which has failed to have itself excluded from a proposed P.U.D. subsequently condemn the P.U.D. facilities within its corporate boundaries and operate its own municipal utility?

            "2. May an unincorporated area (Bellevue) which is included in a P.U.D. and after such inclusion becomes a municipal corporation, then condemn the P.U.D. facilities within its corporate boundaries and operate its own municipal utility?"

            It is our conclusion that in neither case could the municipality condemn the property of the public utility district.

                                                                     ANALYSIS

             [[Orig. Op. Page 2]]

            Section 3, chapter 51, Laws of 1933 (Rem. Rev. Stat. Supp. 9209-3) concludes as follows:

            "* * * nor shall any city or town acquire by condemnation the electric power and/or light plant or electric system, or any part thereof, belonging to or owned or operated by any municipal corporation, mutual, non-profit, or cooperative association or organization, or by a public utility district."

            The statute just quoted in our opinion effectively precludes a municipality from condemning the property of a public utility district.  You may be interested, however, in the further question of whether a municipality included within the limits of a public utility district may thereafter establish its own electric power system, if it can accomplish this without the necessity for condemnation.  This question is now the subject of litigation pending before the state Supreme Court.  The case is entitled Public Utility District No. 1 of Pend Oreille County v. Town of Newport, Supreme Court Cause No. 31558.  In that case the town of Newport, which did not own any electrical power system was included within the boundaries of a public utility district coincident with the boundaries of the county.  Thereafter, the city decided to construct or otherwise acquire its own electric system.  The superior court held that it has that power, although it could not resort to condemnation against the P.U.D.  An appeal has been taken by the public utility district and the case will probably be heard during the next term of the Supreme Court.

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General