AUTHORITY OF GOVERNING BODY TO SELL AIRPORT PROPERTY

CITIES AND TOWNS ‑- AIRPORT PROPERTY ‑- AUTHORITY OF GOVERNING BODY TO SELL AIRPORT PROPERTY.

A city does not have the power to sell or dispose of all of its airport property and facilities to a private individual or corporation when a portion is required for aircraft landings, aircraft takeoffs or related aeronautic purposes.

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                                                              September 11, 1962

Honorable W. A. Gissberg
State Senator, 39th District
312 First National Bank Building
Everett, Washington

                                                                                                              Cite as:  AGO 61-62 No. 163

Dear Sir:

            By letter previously acknowledged you requested our opinion on a question which we paraphrase as follows:

            Can a city sell its entire airport property, some of which is operative, to an individual or private corporation who would maintain aeronautical facilities pursuant to Federal Aeronautics Administration requirements and if so, what may be done with the proceeds of the sale?

            We answer the first part of your question in the negative thus rendering unnecessary any answer to the second part of your question.

                                                                     ANALYSIS

            The right of cities to own and operate airport property is to be found in Title 14 RCW, Aeronautics.  Title 35 RCW dealing with cities and towns does not specifically mention airports, or aeronautical facilities.  RCW 14.08.070 provides as follows:

            "Any acquisition of property within or without the limits of any municipality for airports and other air navigation facilities, or of airport protection privileges, heretofore made by any such municipality in any manner, together with the conveyance and acceptance thereof, is hereby legalized and made valid and effective."

             [[Orig. Op. Page 2]]

            This section was first passed in 1945 as § 4, chapter 182, Laws of 1945.  It is apparent from reading this section that the legislature did not consider cities and towns to possess the power to acquire and operate airport facilities under their general powers conferred upon them under Title 35.

            RCW 14.08.120, as amended by § 2, chapter 74, Laws of 1961, provides in part as follows:

            "In addition to the general powers in this chapter conferred, and without limitation thereof, a municipality which has established or may hereafter establish airports, restricted landing areas or other air navigation facilities, or which has acquired or set apart or may hereafter acquire or set apart real property for such purpose or purposes is hereby authorized:

            "(4) . . . to sell any part of such airports, other air navigation facilities or real property to any municipal or state government, or to the United States or any department or instrumentality thereof, for aeronautical purposes or purposes incidental thereto, . . .  Provided, That in each case in so doing the public is not deprived of its rightful, equal, and uniform use thereof.

            "(5) Such municipality acting through its governing body may sell or lease any property, real or personal, acquired for airport purposes and belonging to the municipality, which, in the judgment of its governing body,may not be required for aircraft landings, aircraft takeoffs or related aeronautic purposes, in accordance with the laws of this state, or the provisions of the charter of the municipality, governing the sale or leasing of similar municipally owned property. . . ." (Emphasis supplied.)

            Other provisions in RCW 14.08.120 relate to what happens upon sale or lease of part of the airport facilities, but none of the other provisions extends the authority set out above.

            From a careful reading of the above quoted portions of said section, it is apparent that the legislature has not provided for the sale of  [[Orig. Op. Page 3]] all of the municipally owned airport property, to an individual or private corporation even though said individual or corporation would agree to maintain a portion of said facilities for takeoffs and landings.

            A municipal corporation, being but a creature of the state, derives its existence, powers, and duties from the legislative body of the state.  Othello v. Harder, 46 Wn. (2d) 747, 284 P. (2d) 1099 (1955).  Generally speaking, the powers of a municipal corporation, and the powers and duties of its officers, are limited to those which have been granted expressly or by necessary implication by the applicable statutes, and if there is a doubt as to whether a power has been granted, it is denied.  Pacific Etc. Ass'n v. Pierce County, 27 Wn. (2d) 347, 178 P. (2d) 351 (1947).

            There is a notable exception to this rule, however, in the case of a city of the first class operating under its constitutionally authorized charter.  (Cf. Article XI, § 10, Washington State Constitution.)  According to several decisions by the supreme court of this state, the rule to the effect that "any fair or reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied," should not be followed in determining a question involving the power of a city of the first class under its charter, as subject to and controlled by general laws.  See,State ex rel. Ennis v. Superior Court, 153 Wash. 139, 279 Pac. 601 (1929);Ayers v. Tacoma, 6 Wn. (2d) 545, 108 P. (2d) 348 (1940).  The broadest statement by the court on that subject is found in Winkenwerder v. Yakima, 52 Wn. (2d) 617, 622, 623, 328 P. (2d) 873 (1958), as follows:

            "It is clear from theEnnis case and from many other decisions of this court that the only limitation on the power of cities of the first class is that their actioncannot contravene any constitutional provision or any legislative enactment . . . [Citing cases.]  The principles adhered to in the preceding cases clearly indicate that a city of the first class has as broad legislative powers as the state, except when restricted by enactments of the state legislature.

            ". . . If the state could constitutionally exercise the powers which the city is here attempting to exercise, then the ordinance and agreement are validunless they contravene some provision of the city's charter.  (Double emphasis ours.)

             [[Orig. Op. Page 4]]

            From a reading of chapter 14.08 RCW, which enumerates the powers, it is clear that cities do not have the power to dispose of all of their airport property facilities to a private individual or corporation, when a portion is "required for aircraft landings, aircraft takeoffs or related aeronautic purposes."

            We trust the foregoing will be of some help to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

CHARLES I. McCLURE
Assistant Attorney General