COUNTIES ‑- ROADS AND BRIDGES ‑- POWER TO CONSTRUCT ‑- JOINT EXERCISE OF POWER BY SEVERAL COUNTIES

COUNTIES ‑- ROADS AND BRIDGES ‑- POWER TO CONSTRUCT ‑- JOINT EXERCISE OF POWER BY SEVERAL COUNTIES.

Counties may not jointly construct and finance a bridge to be located entirely within the territorial boundary of one county.

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                                                                    April 5, 1965

Honorable Nathan G. Richardson
Prosecuting Attorney
Clallam County
Port Angeles, Washington 98362

                                                                                                                Cite as:  AGO 65-66 No. 16

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we have paraphrased as follows:

            May Jefferson county join with Clallam county in paying for a bridge being built entirely within Clallam county on a road that eventually crosses into Jefferson county and serves the residents of that county?

            We answer your question in the negative.

                                                                     ANALYSIS

            Boards of county commissioners have only such powers expressly conferred by the constitution and state laws, or those which are reasonably or necessarily implied from the granted powers.  Sasse v. King County, 196 Wash. 242, 82 P. (2d) 536 (1938).  The county itself exercises delegated authority, and its powers are both limited and strictly construed.  See our opinion to the prosecuting attorney of Skamania county, AGO 63-64 No. 121 [[to Prosecuting Attorney, Skamania County on September 17, 1964]], a copy of which is enclosed.

            In our examination of the constitutional and statutory provisions relating to counties, we have found no legislative authorization for the use of county funds for the construction or improvement of roads inside the territorial limits of another county, except in special statutes relating to special circumstances.  See, for instance, RCW 36.75.210  [[Orig. Op. Page 2]] and RCW 36.75.220.  Furthermore, the only statutory provision we have found even remotely in point under the circumstances outlined in your letter, is RCW 36.75.160, which reads as follows:

            "The board of county commissioners of any county may erect and construct or acquire by purchase, gift, or condemnation, any bridge, trestle, or any other structure which crosses any stream, body of water, gulch, navigable water, swamp or other topographical formation requiring such structure for the continuation or connection of any county road if such topographical formation constitutes the boundary of a city, town, another county or the state of Washington or another state or a county, city or town of such other state.

            "The board of such county may join with such city, town, other county, the state of Washington, or other state, or a county, city or town of such other state in paying for, erecting, constructing, acquiring by purchase, gift, or condemnation any such bridge, trestle, or other structure, and the purchase or condemnation of right of way therefor.

            "The board of any county may construct, maintain, and operate any county road which forms the boundary line between another county within the state or another county in any other state or which through its meandering crosses and recrosses such boundary; and acquire by purchase or condemnation any lands or rights within this state, either within or without its county, necessary for such boundary road; and enter into joint contracts with authorities of adjoining counties for the construction, operation, and maintenance of such boundary roads.  The power of condemnation herein granted may be exercised jointly by two counties in the manner provided in RCW 36.75.170 for bridges, or it may be exercised by a single county in the manner authorized by law."

             [[Orig. Op. Page 3]]

            In the first paragraph of RCW 36.75.160, supra, the commissioners have the express power to erect and construct any bridge over a stream or body of water if such topographical formation constitutes the boundary of another county.  From the diagram you have submitted with the request, we note that Coon Creek, as a topographical formation, does not constitute the boundary between Clallam and Jefferson counties.

            The second paragraph of the statute does authorize the county commissioners to join with a sister county in paying for the erection and construction of such a bridge.  However, the second paragraph is modified by the first in restricting the power to build only when such topographical formation constitutes the boundary line between the counties.

            The third and final paragraph gives the county commissioners the power to construct and maintain roads which form the boundary line between their county and another county, or which, through their meandering, cross and recross the boundary line between the counties.  The road in question, according to your diagram, does not answer that description.

            Since there is no specific provision expressly or impliedly authorizing the county commissioners of adjoining counties to jointly pay for the construction of a bridge which is located within the boundaries of one of the counties, under the circumstances described here, and the stream or road where it is to be constructed is not a boundary line between the two counties, then the county commissioners do not have authority to enter into a joint agreement for such a construction.  No additional powers can be implied from the powers granted.

            Additionally, we should note the further restriction of RCW 36.82.020 reading as follows:

            "Any funds accruing to and to be deposited in the county road fund arising from any levy in any road district shall be expended for proper county road purposes entirely within the limits of the road district from which the same was or is collected:  Provided, That nothing in this section shall prevent the loan or rental of equipment by  [[Orig. Op. Page 4]] one road district to another road district in the county."

            See our analysis and discussion of the county road fund provisions in AGO 63-64 No. 76 [[to C. W. "Red" Beck, State Representative]]on December 19, 1963, copy attached.

            In view of our analysis, we advise you that the county commissioners of Jefferson county may not legally pay money to help build a bridge over Coon Creek which is within Clallam county and does not constitute a "topographical formation" on the boundary line between the two counties.

            In a previous opinion, Opinion No. 2938, dated April 26, 1933, addressed to the prosecuting attorney of Grays Harbor county, we concluded that the board of county commissioners could jointly maintain a bridge lying wholly within one of the counties but adjacent to the boundary.  It was based upon a statute providing that the county commissioners of adjoining counties had the power to join in the construction of a bridge over a body of water "being within or constituting the boundary line of the state or of any county therein."  Rem. Rev. Stat. § 6524, enacted as chapter 56, Laws of 1913.  The statute was repealed in 1937, and the phrase "being within" no longer appears in the present statutory language.  See, § 69, chapter 187, Laws of 1937.  To that extent the previous opinion must be considered superseded by this opinion.

            It is to be noted that the provisions of the present statute have the effect of restoring an even earlier law, formerly codified as Rem. Comp. Stat. § 6513.  That statute authorized county commissioners to contribute county funds for the construction of bridges over streamswhich are boundaries between two counties.  See, Opinion No. 1584, enclosed herein, dated June 3, 1924, to the prosecuting attorney of Lewis county [[1923-24 OAG 256]], which is in accord with the present opinion.

            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