COUNTIES ‑- 4TH CLASS ‑- AUTHORITY TO CONSTRUCT AND OPERATE TOLL BRIDGES ‑- WASHINGTON TOLL BRIDGE AUTHORITY ‑- CONSTRUCTION OF FACILITIES ‑- FEASIBILITY STUDIES BY COUNTIES INVOLVED

COUNTIES ‑- 4TH CLASS ‑- AUTHORITY TO CONSTRUCT AND OPERATE TOLL BRIDGES ‑- WASHINGTON TOLL BRIDGE AUTHORITY ‑- CONSTRUCTION OF FACILITIES ‑- FEASIBILITY STUDIES BY COUNTIES INVOLVED.

(1) A fourth class county does not have the authority to construct and operate a toll bridge.

(2) Under the provisions of chapter 47.56 RCW, the Washington toll bridge authority may construct a toll bridge over a river constituting the boundary line between two counties of the state and over a route which would become a part of the county road system but not a state highway.

(3) The two affected counties may participate in such construction.

(4) Anticipating such construction and participation, the counties involved may not, as a feasibility study, impose a present toll on a presently existing bridge in the immediate vicinity of the proposed new bridge with an understanding that if the proposed facility is not built, the tolls thus collected would be applied to maintenance and repair of the existing facility.

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                                                                    April 5, 1966

Honorable C. J. Rabideau
Prosecuting Attorney
Franklin County Court House
Pasco, Washington

                                                                                                                Cite as:  AGO 65-66 No. 81

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on four questions which we paraphrase as follows:

            (1) Does a fourth class county have the authority to construct and operate a toll bridge?

            (2) Under the provisions of chapter 47.56 RCW, may the Washington toll bridge authority construct a toll bridge over a river constituting the boundary line between two counties of the state and over a route which would become a part of the county road system but not a state highway?

             [[Orig. Op. Page 2]]

            (3) In the event of an affirmative answer to question (2), may the two affected counties participate in such construction?

            (4) Anticipating such construction and participation, may the counties involved, as a feasibility study, impose a present toll on a presently existing bridge in the immediate vicinity of the proposed new bridge with an understanding that if the proposed facility is not built, the tolls thus collected would be applied to maintenance and repair of the existing facility?

            We answer your first and fourth questions in the negative and your second and third questions in the affirmative.

                                                                     ANALYSIS

            Counties, of course, have only the powers granted to them by statute and those which are necessarily implied from the powers granted.  See,Sasse v. King County, 196 Wash. 242, 82 P.2d 536 (1938).  Authorities generally agree that some form of statutory authority is essential to the right to construct a toll bridge and to levy and collect tolls.  See, 8 Am.Jur., Bridges, § 85.

            The answer to your first question is found in AGO 59-60 No. 149 [[to Prosecuting Attorney, Whatcom County on October 4, 1960]], a copy of which is enclosed.  In that opinion we concluded that only first class and class A counties had statutory authority to construct and operate toll bridges; that Whatcom county, being a third class county, had no authority to do so.  Our research discloses no change in statutory law on that question (except to include class AA counties, cf. RCW 36.13.090), and, therefore, your first question must be answered in the negative.

            Question 2

            The answer to your second question is found in the provisions of chapter 47.56 RCW.  RCW 47.56.040 provides in pertinent part as follows:

            "The Washington toll bridge authority is empowered, . . . to provide for the establishing and constructing of toll bridges upon any public highways of this state . . ."

            Public highway is defined in RCW 47.04.010 as follows:

            ". . .

             [[Orig. Op. Page 3]]

            "(29) 'Public highway.'  Every way, lane, road, street, boulevard, and every way or place in the state of Washington open as a matter of right to public vehicular travel both inside and outside the limits of incorporated cities and towns;"

            Therefore, it is our conclusion that the Washington toll bridge authority has the authority to construct the toll facility in question should it determine to do so.

            Question 3

            With regard to participation by the affected counties, RCW 47.56.250 provides in part as follows:

            "Whenever a proposed toll bridge, toll road, toll tunnel or any other toll facility of any sort is to be constructed, any city, county or other political subdivision located in relation to such facility so as to benefit directly or indirectly thereby, may, either jointly or separately, at the request of the Washington state highway commission or the authority advance or contribute money, or bonds, rights of way, labor, materials, and other property toward the expense of building the toll facility, . . ."  (Emphasis supplied.)

            The statute makes further incidental provisions for such participation.  It clearly authorizes participation by counties, under the circumstances described in your letter.  Therefore, we answer your third question in the affirmative.

            Question 4

            For ease of reference, your fourth question, as paraphrased, reads as follows:

            "Anticipating such construction and participation, may the counties involved, as a feasibility study, impose a present toll on a presently existing bridge in the immediate vicinity of the proposed new bridge with an understanding that if the proposed  [[Orig. Op. Page 4]] facility is not built, the tolls thus collected would be applied to maintenance and repair of the existing facility?"

            The proposed project by the counties; namely, to establish a temporary toll for test purposes, would be nothing more nor less than the operation of a toll facility for a limited period.  There is no statutory authority for such a procedure, as we concluded in AGO 59-60 No. 149,supra.

            It might be argued, in support of the proposal, that the county would be merely assisting in preliminary surveys and studies under the authority of that statute.  In answer we would simply have to conclude that the language of the applicable statutes precludes any such implied authority.  RCW 47.56.040,supra, goes on to provide in pertinent part as follows:

            ". . . The necessity or advantage and practicability of any such toll bridge shall be determined by the Washington toll bridge authority and the feasibility of financing any toll bridge in the manner provided by this chapter shall be a primary consideration and determined according to the best judgment of the Washington toll bridge authority.  For the purpose of obtaining information for the consideration of the authority upon the construction of any toll bridge or any other matters pertaining thereto it shall be the duty of any cognizant officer or employee of the state upon the request of the authority to make reasonable examination, investigation, survey or reconnaissance for the determination of material facts pertaining thereto and report the same to the authority.  The cost of any such examination, investigation, survey or reconnaissance shall be borne by the department or office conducting the same from the funds provided for such department or office for its usual functions."  (Emphasis supplied.)

            This language calls for the application of the rule that where there is a duty or power prescribed or granted by statute,  [[Orig. Op. Page 5]] and the statute itself expressly provides the method for its execution, no other method can be implied.  See,State ex rel. State Board Etc. v. Clausen, 84 Wash. 279, 146 Pac. 630 (1915);State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956).

            Therefore, the answer to your fourth question must be in the negative.

            In summary, we conclude that a fourth class county does not have the authority to construct and operate a toll bridge; that the Washington state toll bridge authority has the power to construct such a bridge; that counties may participate in such construction under certain conditions; and that the counties participating by virtue of RCW 47.56.250, supra, have no authority to establish temporary tolls as a feasibility study pending the building of the proposed structure.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General