COUNTIES ‑- CONTRACTS ‑- PROPERTY ‑- SALE OF CRUSHED ROCK

COUNTIES ‑- CONTRACTS ‑- PROPERTY ‑- SALE OF CRUSHED ROCK

A county has no power to sell crushed rock to private parties other than as provided by RCW 36.82.110 or 36.82.100.

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                                                                November 4, 1953

Honorable Lawrence Hickman
Prosecuting Attorney
Whitman County
Seattle‑First National Bank Building
Colfax, Washington                                                                                                              Cite as:  AGO 53-55 No. 164

Dear Sir:

            We have received your letter of October 10, 1953, requesting the opinion of this office upon a question concerning the sale of crushed rock from a county owned quarry.  Specifically, your questions are:

            1. May a county allow a contractor, to whom it has let a rock crushing contract, to crush additional rock from a county quarry and sell it to private parties, when the county benefits therefrom by receiving a lower bid upon the crushing contract?

            2. Could the county make a rock crushing contract with such a provision?

            We believe both questions require a negative answer.

                                                                     ANALYSIS

            One of our statutes, RCW 36.82.100, which was a part of the county road code, provided:

            "The boards of the several counties may purchase and operate, out of the county road fund, rock crushing,  [[Orig. Op. Page 2]] gravel, or other road building material extraction equipment.

            "Any crushed rock, gravel, or other road building material extracted and not directly used or needed by the county in the construction, alteration, repair, improvement, or maintenance of its roads may be sold at actual cost of production by the board to the state or any other county, city, town, or other political subdivision to be used in the construction, alteration, repair, improvement, or maintenance of any state, county, city, town or other proper highway, road or street purpose."

            In 1953 the legislature added to this section by chapter 172, Laws of 1953:

            "* * *Provided, That in counties of less than 12,500 population as determined by the 1950 Federal census, the boards of commissioners, during such times as the crushing, loading or mixing equipment is actually in operation, or from stockpiles, may sell at actual cost of production such surplus crushed rock, gravel, or other road building material to any other person for private use where the place of contemplated use of such crushed rock, gravel or other road building material is more than fifteen miles distant from the nearest private source of such materials within the county, distance being computed by the closest traveled route:  And Provided further, That the purchaser presents, at or before the time of delivery to him, a treasurer's receipt for payment for such surplus crushed rock, gravel, or any other road building material."

            A previous opinion of this office, addressed to Mr. Edgar H. Canfield on August 17, 1940, indicated that, under this statute, prior to the 1953 amendment, a sale of crushed rock by a county to private parties would not be proper.  This still seems to be the legislative intent under the amended statute.  The legislature has seen fit to allow private purchase of county gravel in smaller counties under certain circumstances, but still the over-all intent seems to be to prohibit counties from engaging generally in the commercial rock crushing business.

             [[Orig. Op. Page 3]]

            If the sale of county crushed rock is by the contractor rather than by the county it would seem that the same reasoning should apply, for the county may not do indirectly that which it cannot do directly.  In any event, if the contractor sold the crushed rock, there would be, at some stage of the transaction, a "disposition" of county property within the purview of RCW 36.34.020:

            "Whenever the board of county commissioners desires to dispose of any county property except:

            "(1) When selling to a governmental agency;

            "(2) When personal property to be disposed of is to be traded in upon the purchase of a like article;

            "(3) When the value of the property to be sold is less than two hundred dollars;

            "(4) When the board by a resolution setting forth the facts has declared an emergency to exist; it shall publish notice of its intention so to do once each week during two successive weeks in three different legal newspapers published in the county, or if there are less than three in as many legal newspapers as are published in the county."

            The statutes following this provision in the County Property chapter of our code provide certain procedure to be followed in the event of such "disposition" which, it would seem, would be impractical in a case such as this.

            It is our opinion that unless the parties to whom crushed rock is sold can come within the purview of RCW 36.82.110, or the 1953 amendment to RCW 36.82.100 (chapter 172, Laws of 1953) there is no authority granted to a county to sell county crushed rock to private individuals.  The county, of course, has only such powers as are granted to it.

             [[Orig. Op. Page 4]]

            It follows that if the county does not have the power to sell such rock, no provisions in a contract made by the county could supply the missing power.

Very truly yours,

DON EASTVOLD
Attorney General

KEITH S. BERGMAN
Assistant Attorney General