BOARD OF COUNTY COMMISSIONERS AUTHORITY TO CONSTRUCT AND OPERATE A SPORTS STADIUM OR ARENA AND TO PURCHASE A MAJOR LEAGUE PROFESSIONAL SPORTS FRANCHISE

OFFICES AND OFFICERS ‑- COUNTY ‑- BOARD OF COUNTY COMMISSIONERS AUTHORITY TO CONSTRUCT AND OPERATE A SPORTS STADIUM OR ARENA AND TO PURCHASE A MAJOR LEAGUE PROFESSIONAL SPORTS FRANCHISE

The board of county commissioners is not granted authority by RCW 36.32.120 or 67.20.010 to construct and operate a sports stadium or arena or to purchase on behalf of the county a major league professional sports franchise including but not limited to baseball and football.

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                                                                 January 20, 1961

Honorable Charles O. Carroll
Prosecuting Attorney
King County
County City Building
Seattle 4, Washington

                                                                                                                  Cite as:  AGO 61-62 No. 3

Dear Sir:

            By letter previously acknowledged, you requested the opinion of this office on the following five questions:

            "1. Does RCW 36.32.120 and RCW 67.20.010 grant the power to the board of county commissioners to construct and operate a sports stadium or arena having a seating capacity of 50,000 people and an estimated building cost of $15,000,000?

            "2. Does RCW 36.32.120 and RCW 67.20.010 grant the authority to the board of county commissioners to purchase for and on behalf of the county a major-league professional sports franchise including but not limited to baseball and football?

            "3. If the answer to 1 above is yes, does the county have the authority to finance such a project by general obligation bonds or any other legal income producing vehicle?

            "4. If the county may legally construct and own a sports arena or stadium, may it lease it under existing law to a private individual or organization for operation.

             [[Orig. Op. Page 2]]

            "5. If the county may legally construct such a sports arena or stadium may it legally designate it as a county park and charge admission thereto?"

            We answer your first and second questions in the negative thereby rendering it unnecessary to answer the remaining questions.

                                                                     ANALYSIS

            We answer your first question in the negative.

            Any inquiry with respect to the powers of boards of county commissioners must necessarily be predicated upon the proposition that they have only such powers as have been granted to them, either expressly or through necessary implication, by the constitution and statutes of this state.  Sasse v. King County, 196 Wash. 242, 82 P. (2d) 536 (1938).  We must also bear in mind that a power is not to be implied unless necessary to the exercise of a power expressly granted.  Woodward v. City of Seattle, 140 Wash. 83, 248 Pac. 73 (1926).  Of further significance is the rule that statutes granting powers to municipal corporations must be strictly construed so that if there is doubt as to whether the power is granted, it will be denied.  Pacific First Federal Savings and Loan Association v. Pierce County, 27 Wn. (2d) 347, 178 P. (2d) 351 (1947).

            RCW 36.32.120 enumerates the general powers and duties of such boards.  As our court stated inState ex rel. King County v. Superior Court, 33 Wn. (2d) 76, 204 P. (2d) 514 (1949), at page 81:

            ". . . There is nothing in that entire section of the statute, . . . which either expressly or by necessary implication confers upon the board of county commissioners the power or authority to acquire lands for public use as a park or recreational site, by condemnation or otherwise."

            Likewise, there is nothing in that entire statute which either expressly or by necessary implication confers the power upon the county to construct or operate any type of recreational site.

            The power to construct and operate certain types of recreational sites is granted in RCW 67.20.010, the pertinent portion of which reads:

            ". . . any county acting through its board of county commissioners, . . . shall have power, acting independently or in conjunction with the United States, 

             [[Orig. Op. Page 3]]

the state of Washington, any county, city, park district, school district or town or any number of such public organizations to acquire any land within this state for park, playground, gymnasiums, swimming pools, field houses andother recreational facilities, bathing beach or public camp purposes and roads leading from said parks, playgrounds, gymnasiums, swimming pools, field houses andother recreational facilities, bathing beaches, or public camps to nearby highways by donation, purchase or condemnation, and to build, construct, care for, control, supervise, improve, operate and maintain parks, playgrounds, gymnasiums, swimming pools, field houses andother recreational facilities, bathing beaches, roads and public camps upon any such land, . . ."  (Emphasis supplied.)

            In addition, RCW 36.68.060 (5) grants the county park and recreation board the power to:

            ". . . improve, operate, and maintain parks, playgrounds, and other recreational facilities, together with all structures and equipment useful in connection therewith, and may recommend to the board of county commissioners acquisition of real property."  (Emphasis supplied.)

            It is our opinion that neither statute expressly or by necessary implication confers upon counties the power to construct or operate a sports stadium.

            We think our conclusion herein is substantially buttressed by RCW 35.21.020, which provides as follows:

            "Any city or town in this state acting through its council or other legislative body, and any separately organized park district acting through its board of park commissioners or other governing officers, shall have power to acquire by donation, purchase or condemnation, and to construct and maintainpublic auditoriums, art museums, swimming pools, and athletic and recreational fields, including golf courses,buildings and facilities within or without its parks, and to use or let the same for such public and private purposes for such compensation and rental and upon such conditions as its council or other legislative body or board of park commissioners shall from time to time prescribe."  (Emphasis supplied.)

             [[Orig. Op. Page 4]]

            Although there might be some question and we express no opinion in this respect, a mere reading of the statute just quoted suggests that the undertaking proposed here would fall within the powers expressly granted to cities and towns.  At least it indicates that if the legislature had intended to confer upon counties the power brought into question here, it would have expressed such intention much more clearly.

            In any event, the best that can be said is that it is doubtful as to whether a county has been granted the power to construct and operate a sports stadium.  In this respect we concur with the opinion of your office to the Board of King County Commissioners on July 13, 1960, wherein you conclude that it is doubtful that such power exists.  The matter being doubtful, the rule of Pacific First Federal Savings and Loan Association v. Pierce County, supra, applies so that the power must be denied.

            With respect to your second question, our answer is also in the negative.  We have been unable to find anything in the law relating to counties that would give them the power to purchase a major league sports franchise.

            Since we have concluded that the county has no authority to construct or operate a sports stadium, your last three questions relating to the financing, leasing and designation of such a stadium are no longer relevant.  We merely comment that with respect to your fifth question, we advised, on a prior occasion, that a county has no authority to impose a charge for admission upon users of its parks.  See AGO 57-58, No. 64 [[to Prosecuting Attorney, King County on May 21, 1957]], a copy of which is enclosed herewith.

            In conclusion, we recommend that this entire matter be submitted to the legislature at the current session for its consideration.  It is further suggested that any proposed legislation should be comprehensive in scope and in addition to providing for the acquisition of land, construction, operation and leasing of such a sports stadium incorporate therein specific means of financing the entire venture.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DUANE S. STOOKEY
Assistant Attorney General