COUNTIES ‑- BOARD OF COUNTY COMMISSIONERS ‑- TOURIST PROMOTION ‑- ADVERTISING RECREATIONAL FACILITIES ‑- EXPENDITURE OF PUBLIC FUNDS

COUNTIES ‑- BOARD OF COUNTY COMMISSIONERS ‑- TOURIST PROMOTION ‑- ADVERTISING RECREATIONAL FACILITIES ‑- EXPENDITURE OF PUBLIC FUNDS.

The board of county commissioners of a county does not have the authority to expend public funds for tourist promotion by advertising the county in terms of recreational advantages and facilities to be found therein.

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                                                              September 17, 1964

Honorable Robert J. Salvesen
Prosecuting Attorney
Skamania County
Stevenson, Washington

                                                                                                              Cite as:  AGO 63-64 No. 121

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on the following paraphrased question:

            Do the county commissioners have the authority to expend public funds to advertise the county in terms of the recreational advantages and facilities to be found therein?

            We answer your question in the negative as explained in our analysis.

                                                                     ANALYSIS

            Boards of county commissioners have only such powers as have been granted to them, expressly or by necessary implication, by the constitution and statutes of the state.  Sasse v. King County, 196 Wash. 242, 82 P. (2d) 536 (1938).

            As a creature of statute, exercising delegated authority, the county has limited powers, strictly construed.  The principle of strict construction is summarized in Griggs v. Port of Tacoma, 150 Wash. 402, 273 Pac. 521 (1928), as follows:

            ". . . if the power is not expressly granted or fairly implied as incidental and essential to the powers granted, such powers must be denied."

             [[Orig. Op. Page 2]]

            The words "necessary" or "essential" refer to legal necessity rather than actual necessity.  State ex rel. State Board Etc. v. Clausen, 84 Wash. 279, 283, 146 Pac. 630 (1915).  Further implied powers are such as are necessary to carry into effect those which are expressly granted, and which must, therefore, be presumed to have been within the intention of the legislative grant.  City of Madison v. Daley, 58 Fed. 751, 755 (1893).  If there is a fair or reasonable doubt as to whether or not a particular power has been granted, it must be denied.  Griggs v. Port of Tacoma, supra; Pacific Etc. Ass'n v. Pierce County, 27 Wn. (2d) 347, 178 P. (2d) 351 (1947); 2 McQuillin, Municipal Corporations, § 10.12, p. 609.

            With these fundamental principles in mind, we now consider whether or not the advertising of recreational advantages or other attractive features of the county and the concomitant expenditure of county funds for that purpose can properly be considered as within the powers of the board of county commissioners.  RCW 36.32.120 sets out in general the powers and duties of county commissioners.  In so far as is pertinent here that statute provides:

            "The several boards of county commissioners shall:

            ". . .

            "(6) Have the care of the county property and the management of the county funds and business and in the name of the county prosecute and defend all actions for and against the county, and such other powers as are or may be conferred by law;"

            A reading of this statute does not reveal any express grant of power which would authorize the expenditure of public funds for the purposes contemplated by your question.  Thus, the inquiry must turn upon whether or not such authority can be implied; i.e., whether it may be considered as legally necessary to the accomplishment of the express powers granted.

            In 37 Am.Jur., Municipal Corporations, § 127, p. 740, we find authority to the contrary as follows:

             [[Orig. Op. Page 3]]

            "In accordance with the general rule that municipal funds cannot be expended for private or nonpublic uses, it is held that a municipality has no power to make expenditures for advertising or other forms of publicity, in the absence of legislative authority in either the charter or by statute. . . ."1/

             See, also, 15 McQuillin, Municipal Corporations, § 39.21, pp. 54-55.

            The foregoing is in conformity with a view expressed by this office in a letter dated May 19, 1945, written to the prosecuting attorney of Yakima county in reply to a similar question.  A copy of this letter is enclosed for your information.  Since the legal principles involved have not changed, we must reaffirm the views expressed therein.

            In passing it should be pointed out that we are here discussing the question of a county's authority to advertise the county itself in terms of its recreational facilities; not whether a county in the management of a specific recreational facility as a proprietary function may advertise that facility to attract patrons.