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Bob Ferguson

AGO 1952 No. 342 - Jul 8 1952
Attorney General Smith Troy


County commissioners do not have the power to prohibit the use of motor boats upon non-navigable [[nonnavigable]]lakes.

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                                                                     July 8, 1952

Honorable Charles O. Carroll
Prosecuting Attorney
King County
Seattle, Washington                                                                                                              Cite as:  AGO 51-53 No. 342

Attention:  Mr. K. G. Smiles

Dear Sir:

            Receipt is acknowledged of your letter requesting our opinion as to whether a board of county commissioners has authority to ban the use of motor boats on a non-navigable [[nonnavigable]]body of water.

            It is our conclusion that the board of county commissioners does not have authority to ban the use of motor boats upon a non-navigable [[nonnavigable]]body of water.


            A county derives its power to make police regulations from section 11, Article XI of our Constitution, which reads:

            "Any county, city, town or township, may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws."

            The legislature has enacted a general statute relative to the operation of motor boats.  RCW 88.12.010 to 88.12.060 (chapter 72, Laws of 1933, RRS 9851-1, et seq.).  RCW 88.12.020 provides:

             [[Orig. Op. Page 2]]

            "A motorboat shall be driven in a careful and prudent manner on waters in the state and at a speed no greater than is reasonable and proper under the conditions at the time and place of operation, taking into account the amount and character of traffic, size of the waters, freedom from obstruction to view ahead, and so as not to unreasonably endanger persons or property or other rights of any person entitled to the use of such waters."

            By the definition contained in RCW 88.12.010 "waters" include "any lake, pond, or other body of water;".  The general law is thus applicable to the operation of a motor boat upon a non-navigable [[nonnavigable]]lake.  Non-navigable [[Nonnavigable]]lakes are private property.  Snively v. State, 167 Wash. 385, 9 P. (2d) 773; Proctor v. Sim, 134 Wash. 606; Bernot v. Morris, 81 Wash. 538, 143 Pac. 104.  Since these non-navigable [[nonnavigable]]lakes may be privately owned their regulation is subject to the principles relative to the regulation of private property and must be based upon a reasonable exercise of the police power.

            InState ex rel. Ritchey v. Smith, 42 Wash. 237, 84 Pac. 851, our supreme court said:

            "The power of the legislature to make all needful rules and regulations for the health, comfort, and well-being of society cannot be questioned, but there are certain limits beyond which the legislature cannot go, without trenching upon liberty and property rights which are safeguarded by the state and Federal constitutions.  * * *"

            The question here to be decided is whether a prohibition of the operation of motor boats is an arbitrary invasion of private rights.  The justification for any exercise of police power is that it is exercised only in the pursuit of the general welfare.

            "It is axiomatic that the police power may be exercised only in pursuit of the general welfare.  * * * "Ralph v. Wenatchee, 34 Wn. (2d) 638, 209 P. (2d) 270.

             [[Orig. Op. Page 3]]

            The police power may not be exercised to the extent of depriving private persons of their private rights beyond the point that it is necessary to protect others from unreasonable interference.  InSeattle v. Ford, 144 Wash. 107, 257 Pac. 243, our supreme court quoted with approval the following from Tiedman on State and Federal Control of Persons and Property, Volume I, page 4, as follows:

            "'It is to be observed, therefore, that the police power of the government, as understood in the constitutional law of the United States, is simply the power of the government to establish provisions for the enforcement of the common as well as civil-law maxim, sic utere tuo ut alienum non laedas.  "This police power of the State extends to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the State.  According to the maxim,sic utere tuo ut alienum non laedas, it being of universal application, it must of course be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others."  Any law which goes beyond that principle, which undertakes to abolish rights, the exercise of which does not involve an infringement of the rights of others, or to limit the exercise of rights beyond what is necessary to provide for the public welfare and the general security, cannot be included in the police power of the government.  It is a governmental usurpation, and violates the principles of abstract justice, as they have been developed under our republican institutions.'"

            The right to regulate does not include the right to prohibit where that is not necessary.  In re Ferguson, 80 Wash. 102, 141 Pac. 322; Seattle v. Ford, 144 Wash. 107, 257 Pac. 243.

            Applying those rules to the present case the state statute already quoted requires that a motor boat be operated in a prudent manner at a speed no greater than is reasonable and proper under the conditions at the time and place of operation, taking into account the amount and character of the traffic,  [[Orig. Op. Page 4]] size of the water, freedom of obstruction of the view ahead and so as not to unreasonably endanger persons or property or other rights of any persons entitled to the use of such waters.  We believe that a county ordinance would be unconstitutional if it undertakes to prohibit a type of operation which would comply with the requirements of the state statute.  In fact, if the state statute is complied with, there appears to be no ground left for exercise of the police power which would justify the interference with the rights of individuals with respect to the use of motor boats upon such lakes, because they would not be interfering unreasonably with others.

            It is, therefore, our opinion that it would not be proper for a county to enact an ordinance prohibiting the operation of motor boats upon non-navigable [[nonnavigable]]lakes.

Very truly yours,

Attorney General

Assistant Attorney General