COUNTIES ‑- COMMISSIONERS ‑- ROADS ‑- FRANCHISE APPLICATION ‑- DESCRIPTION OF ROADS

COUNTIES ‑- COMMISSIONERS ‑- ROADS ‑- FRANCHISE APPLICATION ‑- DESCRIPTION OF ROADS.

A franchise application by a utility company for permission from a board of county commissioners to utilize certain county roads adequately describes those roads by referring to the section, township, and range in which the roads are located.

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                                                                    May 8, 1962

Honorable Lincoln E. Shropshire
Prosecuting Attorney
Yakima County
Yakima, Washington

                                                                                                              Cite as:  AGO 61-62 No. 130

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office upon a question which we paraphrase as follows:

            May the board of county commissioners consider as adequate a franchise application under the provisions of chapter 36.55 RCW, which contains a description of county roads by referring to all such roads within designated sections and townships of the county?

            We answer your question as explained in the analysis.

                                                                     ANALYSIS

            You have indicated that your question is prompted by the practical difficulties inherent in specific description and identification of roads which have been or may be relocated, or which touch upon or cross through platted areas, or which for other reasons would require some engineering and/or surveying effort in order to achieve complete accuracy in description and identification.  In addition, you have brought our attention to the provisions of 1961 amendatory legislation.

            Prior to 1905, a county had no power to grant franchises for the location of utility facilities along, over, or under county roads.  State ex rel Spring Water Co. v. Monroe, 40 Wash. 545, 82 Pac. 888 (1905).  In that year curative legislation was passed in order to validate previous attempts to grant franchises‑-to the extent that the attempted grants had been acted upon by the grantees.  Sections 2, 3, chapter 106, Laws of 1905, pp. 211-12.  SeeSpring Water Co. v. Monroe, 55 Wash. 195, 104 Pac. 202 (1909).  More importantly for present purposes, the  [[Orig. Op. Page 2]] county commissioners were expressly authorized to grant franchises in the future.  The method by which such grants were to be made was specifically prescribed by the following language:

            ". . .Provided, That hereafter on application being made to the board of county commissioners for any such franchise, the board shall fix a time and place for hearing the same, andshall cause the county auditor to give public notice thereof at the expense of the applicant, by posting written or printed notices in three public places in the county seat of the county and in at least one conspicuous place on the roads or streets or parts thereof for which application is made, at least fifteen (15) days before the day fixed for such hearing, and by publishing a like notice three (3) times in some daily newspaper published in the county, or if no daily newspaper is published in the county, then the newspaper doing the county printing, the last publication to be at least five (5) days before the day fixed for such hearing,which notice shall state the name or names of the applicant or applicants, a description of the roads or streets or parts thereof for which the application is made, and the time and place fixed for the hearing.  Such hearing may be adjourned from time to time by the order of the board.  If, after such hearing, the board shall deem it to be for the public interest to grant such franchise in whole or in part, the board may make and enter the proper order granting the franchise applied for or such part thereof as the board deems to be for the public interest, and may require any such utility and its appurtenances to be placed in such location on or along the roads or streets as the board finds will cause the least interference with other uses of the roads or streets. . . ."  Section 1, chapter 106, Laws of 1905, pp. 210-211.  (Emphasis supplied.)

            This statute was substantially re‑enacted [[reenacted]]in 1937.  Section 38, chapter 187, Laws of 1937.  However, the following section was added:

            "It shall be the duty of the board of county commissioners to cause to be recorded with the  [[Orig. Op. Page 3]] clerk of the board of county commissioners of their respective counties within thirty days after the effective date of this act a complete record of all existing franchises upon the county roads of their respective counties and to henceforth keep and maintain a currently correct record of all franchises existing or granted with information describing the holder of the franchise, the purpose thereof, the portion of county road over or along which granted, the date of granting, term for which granted and date of expiration, and any other information with reference to any special provisions of such franchises."  Section 42, chapter 187, Laws of 1937, p. 757.  (Emphasis supplied.)

            In the most recent session of the legislature, Senate Bill No. 117 was introduced and passed, as amended.  See chapter 55, Laws of 1961.  With the exceptions hereinafter to be noted, this legislation was a partial re‑enactment [[reenactment]]of prior law in the form adopted by the code reviser (RCW citations and quotations have not been used in this opinion because Title 36 [[Title 36 RCW]]has neither been restored to session law language nor re‑enacted [[reenacted]]by the legislature).  Both the original bill form and the enacted 1961 law removed the requirement that public notice prior to hearing be posted conspicuously upon the county roads to which reference was made in the application.  Section 3, chapter 55, Laws of 1961.

            The bill as introduced also contained the following amendatory language referring to the road description to be placed in the published notice of the application:

            ". . . The notice shall state the name or names of the applicant or applicants, a description by reference to section, township and range; of the physical location of the county road, or portion thereof, to be included in the franchise for which the application is made, and the time and place fixed for the hearing."  Section 3, Senate Bill No. 117, Thirty-seventh Regular Session.

            However, this language was amended by the Senate in adopting an amendment proposed by one of the bill's sponsors.  It now reads as follows:

            ". . . The notice shall state the name or names  [[Orig. Op. Page 4]] of the applicant or applicants, a description of the county roads by reference to section, township and range in which the county roads or portions thereof are physically located, to be included in the franchise for which the application is made, and the time and place fixed for the hearing."  Section 3, chapter 55, Laws of 1961.

            The distinction between the original and the enacted language lends clarification to the intent of the legislature in imposing a description requirement in franchise applications.  It would seem that some additional particularity is called for by a descriptionof the physical location of a county road, using as a reference the section, township, and range grid coordinates; as contrasted with a description of a county road, using as a reference the grid coordinates in which the road is located.  Consequently, the language enacted into law seems less stringent than that originally offered for enactment.

            Furthermore, the purpose of giving public notice so that abutting property owners and other interested persons might have an opportunity to participate in the hearing to be held by the board and indicate factors which comprise "the public interest" is the cardinal feature of the description requirement.  SeeState ex rel. York v. Board of County Commissioners, 28 Wn. (2d) 891, 184 P. (2d) 577 (1947) for an extensive discussion of subjects to be considered at such a hearing.  The requirement of a permanent public record containing adequate road descriptions is a complementary feature of the statutory system.  It appears to us that this basic legislative purpose may be satisfied without the minute detail which might have been required under our interpretation of the original language of Senate Bill No. 117.  The substitution of less onerous language may have resulted from a realization that a burden would have been created without a corresponding benefit.

            Statutory provisions regarding the method of granting franchises are mandatory and substantial compliance therewith is necessary to avoid an invalid and ineffectual grant.  12 McQuillin, Municipal Corporations § 34.28 (3rd ed.).  We believe that such compliance is present where a franchise application refers to all county roads which lie within designated grid coordinates.  However, such a conclusion should not foreclose the possibility (and in some cases, obvious wisdom) of causing the posting and publishing of notices with expanded and/or more specific descriptions for the purpose of more readily creating an understanding of the location of the roads or portions thereof which are covered by the application.  Similarly, the language of the  [[Orig. Op. Page 5]] franchise application need not prevent the commissioners from including in their subsequent formal grant such an expanded and/or more specific description‑-in addition to appropriate regulatory provisions.  See, 1 and 2 Wilcox, Municipal Franchises, for examples of franchise grants.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DAVID C. CUMMINS
Assistant Attorney General