COUNTIES ‑- CAN THE BOARD OF COUNTY COMMISSIONERS OF PACIFIC COUNTY SELL THE COUNTY'S INTEREST IN THE MEGLER FERRY LANDING?

COUNTIES ‑- CAN THE BOARD OF COUNTY COMMISSIONERS OF PACIFIC COUNTY SELL THE COUNTY'S INTEREST IN THE MEGLER FERRY LANDING?

The Board of County Commissioners of Pacific County cannot sell the interest owned by Pacific County in the Megler Ferry landing, without first obtaining express authority for such sale from the state legislature.

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                                                                     July 7, 1952

Honorable James E. Duree
Prosecuting Attorney
Pacific County
P.O. Box 552
Raymond, Washington                                                                                                              Cite as:  AGO 51-53 No. 341

Dear Sir:

            In your letter of May 20, 1952, you inquire:

            "'Can the Board of Commissioners of Pacific County sell the interest owned by Pacific County in the Megler Ferry Landing at the lower part of the county, which was acquired by Pacific County in cooperation with several other counties some years back?'"

            It is our conclusion that the Board of County Commissioners of Pacific County cannot sell the interest owned by Pacific County in the Megler Ferry landing without first obtaining express authority for such sale from the state legislature.

                                                                     ANALYSIS

            The authority to sell and dispose of county property is set forth in chapter 36.34 RCW, (Rem. Supp. 1945, §§ 4007-4014 inclusive).  But, however broad the power conferred may seem to be, there are certain limitations on this power which have been expressed in a long line of cases.  The first of these isSamish Boom Company v. Callvert, 27 Wash. 611, 68 Pac. 367, in which the rule is stated in the following language:

            "* * * The rule is that, whenever a tract of public land is once legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public land, so that authority to sell in general terms will not be construed to embrace or operate upon it, although no reservation is made of it.  * * *"

            InCarpenter v. Okanogan County, 163 Wash. 18, 299 Pac. 400, the court states the rule as follows:

             [[Orig. Op. Page 2]]

            "* * * It is elementary that counties derive such powers as they possess, not from special charter, but from general laws, and may exercise such functions of local government and perform such duties as are imposed upon them by the sovereign ‑-and no others.  They are incapable of acquiring or holding real property except for public purposes, and such property, once acquired and devoted to a public use, can not be alienated without legislative authority, either express or implied."  (Emphasis supplied)

            The most recent case on this question is Commercial WaterWay District No. 1 v. King County, 200 Wash. 538, 94 P. (2d) 491.  The purpose of this action was to prevent the sale by King County of a tract of land abutting on the Duwamish waterway.  The larger portion of the land in question, was acquired by King County for a dock site, which was an integral part of the comprehensive harbor development program.  This program was to be supported by a bond issue, which was approved by a vote of the people, in the amount of $350,000.00 to be expended "* * * in acquisition for public uses of sites for wharves and docks, * * *" and the property was purchased and improved with the funds so obtained.  The court in upholding the equitable relief prayed for, stated:

            "Where property was acquired by a county, in its governmental capacity, for dock site purposes, the intent being to hold the property in trust for the public until the growth of the harbor should require docks at such locations, the fact that the need for such docks has not yet appeared does not give the county the right to pass the property back into private ownership on the theory that it is no longer necessary for the purposes intended; since it can not be proved that the harbor has reached the zenith of its development, and the need for docks may arise in the future."

            In the course of the decision in the above cited case, at page 562 of 200 Wash. Rep., the court sets out at some length a portion of the holding inDix v. Port of Port Orford, 131 Ore. 157, 282 Pac. 109, and in distinguishing that case, the court said:

            "If the property in the case at bar had been acquired in a proprietary capacity, as the Port Orford property was, the county commissioners could, no doubt, dispose of it upon a showing that it was no longer needed."

            By reason of the fact that the court in Waterway District v. King County, supra, commented at great length on theDix case,  [[Orig. Op. Page 3]]supra, and for the further reason that it may parallel your question, we feel that it would be profitable to set out the pertinent parts thereof.  The defendant in that case, Port Orford, was organized as a municipal corporation, with its primary purpose and object as declared in the enabling act to promote "maritime shipping and commercial interests of such corporation."  From the proceeds of the bond issue authorized by a vote of the people, a dock site was purchased and a wharf erected where a toll was charged for commodities shipped to or from the port.  At the time that the port engaged in this enterprise, the area was comparatively isolated and there was a grave need for the communication afforded to the business world by the port facilities.  However, the coming of truck transportation and good highways caused the revenues of the port to suffer considerably, to such an extent that the resources of the port were insufficient to meet the operating and maintenance expense.  The situation became very acute and the port commissioners contracted to sell the property.  In a suit by a taxpayer to enjoin the sale, the court stated:

            "'As a general rule the power of a municipality to convey property is equal to its power to acquire it.  At common law a municipal corporation, unless restrained by its charter, could dispose of property in the same manner as private individuals: 19 R.C.L. 772.  In the instant case, we do not think that the property acquired through purchase was dedicated to a public use.  True, it inured to the benefit of the public, butthe port was engaged in this commercial enterprise for profit as a toll was charged any shipper who used the wharf or docking facilities.  It was not open to indiscriminate use by the public.  In the maintenance and operation of this property the port was acting in a proprietary capacity:  * * *It held title to property which had been acquired for strictly corporate uses:  * * * It is not a case of holding title to property in trust where there has been a dedication to a public use.  It is not analogous to streets or to public highways.  Due to changed conditions the board of commissioners in the exercise of their discretion determined that this property was no longer adapted to the purpose for which it was originally intended and that the best interests of the taxpayer would be subserved by disposing of the same.'"

            InState v. Superior Court, 91 Wash. 454, 458, 157 Pac. 1097, the court said:

            "* * * As is well known, the state holds title to property in two entirely distinct capacities, the one a proprietary capacity, as individuals generally hold property, and the other a governmental capacity, that is, in trust for the public use.  The rule, therefore, is that a statute  [[Orig. Op. Page 4]] conferring the right to condemn state or other municipal property generally, will, in the absence of express words to the contrary, be confined to such property as it holds in its proprietary character.  * * *"

            InState ex rel. Northern Pacific Railroad Company v. Superior Court, 136 Wash. 87, 238 Pac. 935, the railroad sought to condemn for right of way purposes 26/100 of an acre of a public park in the town of Shelton, Mason County.  In its decision the court stated at page 94:

            "It is the consensus of authority that the legislature may confer on a municipality power to devote property it holds in a trust capacity for a particular use to uses in addition to, and inconsistent with, the use for which it acquired it.  But the authorities are equally uniform that the power must be specially conferred, either by express grant or by necessary implication arising from an express grant, and is not conferred by a general grant empowering the municipality to acquire, hold, and dispose of property.  * * *"  (Emphasis supplied)

            We construe the above quotation and the holding in Carpenter v. Okanogan County, supra, to mean that a municipal corporation can alienate, or otherwise dispose of its property held in a governmental capacity, only by express authority conferred by the state legislature.

            In order that the above rule may be considered as not applicable to the Megler Ferry landing property, held by Pacific County, we must find that the said land and appurtenances attached thereto are held in a proprietary capacity.

            It would seem from a study of the cases that the test to be applied in a situation of this character, is whether the property in question is held by the municipal corporation for the purpose of making a profit which inures directly to the municipal corporation.

            In determining this question it is necessary to set out certain clauses, insofar as they are pertinent to this question, of the agreement entered into by and between Pacific County, the Oregon State Highway Commission, the Astoria North Beach Ferry Company and the Columbia Transportation Company, Clatsop County, Oregon and the City of Astoria, Oregon.

            "THINGS TO BE DONE AND OBLIGATIONS TO BE ASSUMED BY PACIFIC COUNTY:

            "1. Purchase from the companies and pay therefor  [[Orig. Op. Page 5]] the sum of $15,000.00 the property referred to herein as the Megler ferry-landing property.

            "2. Make available to and immediately place under the sole control and jurisdiction of the Oregon State Highway Commission for ferry transport use all of the said Megler Ferry-landing property acquired or to be acquired by the county from the companies; provided, however, the title to said property shall be and remain in Pacific County.  So that it may in the event that the State of Washington requires said property for bridge purposes or other purposes or that the State of Washington and the United States Government or either may require said properties for an inter-state bridge, then said Oregon State Highway Commission will immediately vacate said properties.

            "* * *

            "THINGS TO BE DONE AND OBLIGATIONS TO BE ASSUMED BY THE STATEof Oregon:

            "* * *

            "5. Use and employ all toll revenues accruing from the operation of such service in the following manner:

            "* * *

            "(c)  After said ferry service has been in operation under the supervision of the Oregon State Highway Commission for a period of one year, reimburse Pacific County on a pro rata basis for said counties initial or capital investment in the Megler Ferry Landing property to the extent of $15,000.00.

            "GENERAL OBSERVATIONS AND OBLIGATIONS:

            "1. It is the general and collective understanding of these parties that upon the performance of the respective obligations herein set forth and especially upon the completion of the purchase by Pacific County of the said Megler Ferry Landing property, then this instrument shall to the extent that the same effects or binds Pacific County and the Oregon State Highway Commission be deemed and construed as a conformance by the said Pacific County of its obligations to make available to the State for ferry transport purposes the said Megler ferry-landing property without any other or additional instrument, and thereafter Pacific County shall be under no obligation with respect to the maintenance of said properties or any part thereof.

            "* * *

             [[Orig. Op. Page 6]]

            "5. This is a cooperative effort on the part of the parties named herein, the purpose and objective of which is to provide the best public ferry transportation service at the lowest cost consistent with good business principles, and, therefore, and to that end each party pledges to the others complete cooperation and good faith."

            Nowhere in the agreement is there disclosed an intent that Pacific County is to derive a profit, by reason of its contribution of the use of the land and facilities of Pacific County at Megler, Washington; but, merely that the Oregon Highway Commission will reimburse Pacific County the investment of $15,000.00 from the tolls charged by the ferry service operated and controlled by the Oregon Highway Commission.

            The agreement obligates Pacific County to, " * * * make available to and immediately place under the sole control and jurisdiction of the Oregon State Highway Commission, for ferry transport use all of said Megler ferry landing property, * * * " which evidences an intent that the property was to be dedicated to a public use, for ferry transport purposes.  This in connection with the absence of profit making, in our opinion, brings the situation within the rule that the Megler ferry landing is held by Pacific County in its governmental capacity and it therefore follows that legislative authority must be procured before the land and the appurtenances affixed thereto may be alienated.

Very truly yours,

SMITH TROY
Attorney General

STEPHEN C. WAY
Assistant Attorney General