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AGO 1950 No. 404 - December 27, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

GRADE CROSSING IN CITIES FRAMING OWN CHARTERS

After a city reaches 20,000 in population and is authorized to frame its own charter, the Public Service Commission does not have jurisdiction over grade crossings within the limits of such city under the provisions of the grade crossing act.

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                                                               December 27, 1950

Washington Public Service Commission
Insurance Building
Olympia, Washington                                                                                                                                                 Cite as: AGO 49-51 No. 404

Gentlemen:

            We have your letter of December 19, 1950, in which you ask the following question:

            Does the Public Service Commission have jurisdiction over grade crossings in a city which has reached a population of 20,000 but which has not applied for authorization to frame its own charter, or does the limitation of jurisdiction become operative only after such authorization?

            The conclusion reached may be summarized as follows:

            After a city reaches 20,000 in population and is authorized to frame its own charter, the Public Service Commission does not have jurisdiction over grade crossings within the limits of such city under the provisions of the grade crossing act.

                                                                     ANALYSIS

            The limitation is found in section 3, chapter 179, Laws of 1925 Ex. Sess., which amended section 21, chapter 30, Laws of 1913 (Rem. Rev. Stat. 10531), of the grade crossing law and is as follows:

             [[Orig. Op. Page 2]]

            "This act shall not be operative within the limits of cities authorized to frame their own charters * * *"

            The word "authorized" is used, in our opinion, in the future sense and it would thus naturally follow that no action is required by a city but that when it becomes a city with 20,000 population, the act does not apply and the commission ceases to have jurisdiction.  The language in the act was no doubt suggested by Article XI, section 10, of the Washington Constitution.  InState ex rel. Hindley v. Superior Court, 70 Wash. 352, the court held that the right to frame its charter granted to cities of 20,000 by the Constitution was a continuing right.  This would indicate that there is no special requirement as to the time that such right must be exercised and that it is a right which may be exercised at once or in the future.

            Our view of this matter is bolstered by the action of the legislature.  In 1913 when it repealed chapter 162, Laws of 1909, the original grade crossing act, the repeal included section 3 of the 1909 act, which read:

            "The two preceding sections shall not be construed as applying to highways and railroads in cities framing their own charters."

            Had the legislature intended the act to apply to cities eligible but failing to act, it could have used the language it repealed in 1913 in the new act upon the same subject.

Very truly yours,

SMITH TROY
Attorney General

DON CARY SMITH
Assistant Attorney General

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