FERRIES ‑- POWER OF COUNTY COMMISSIONERS TO LICENSE

FERRIES ‑- POWER OF COUNTY COMMISSIONERS TO LICENSE

County commissioners no longer have authority to grant licenses or franchises to privately-operated ferries, since RCW 36.53.010 has been repealed by implication.

This matter is now covered by RCW 81.84.010.

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                                                               December 29, 1954

Honorable Maloy Sensney
Prosecuting Attorney
Benton County
Fisk Building
Prosser, Washington                                                                                                              Cite as:  AGO 53-55 No. 373

Attention:  Mr. Herbert H. Davis, Deputy

Dear Sir:

            You have requested the opinion of this office as to the power of the county commissioners of Benton and Franklin Counties to grant ferry franchises to a private operator to permit the establishment of a ferry across the Columbia River, which forms the boundary between the two counties.

            In our opinion, the county commissioners no longer have the power to grant private ferry franchises, RCW 36.53.010 having been repealed by implication.

                                                                     ANALYSIS

            RCW 36.53.010, derived directly from § 1, page 354, Laws of 1854, provides:

            "The board of county commissioners may grant a license to keep a ferry across any lake or stream within its county, upon being satisfied that a ferry is necessary at the point applied for, which license shall continue in force for a term to be fixed by the commissioners not exceeding five years."

             [[Orig. Op. Page 2]]

            Your question would simply present a problem as to the correct construction of the foregoing statute, except for the existence of RCW 81.84.010; which was originally enacted in § 1, chapter 284, Laws of 1927, and now provides in relevant part as follows:

            "No steamboat company shall hereafter operate any vessel or ferry for the public use for hire between fixed termini or over a regular route upon the waters within this state, including the rivers and lakes and Puget Sound, without first obtaining from the commission a certificate declaring that public convenience and necessity require such operation: * * *"

            Plainly, there is an inconsistency between the statutes quoted above.  If the Public Service Commission determines under RCW 81.84.010 that a proposed ferry operation will not be in the public interest, could the county commissioners nonetheless proceed to authorize the operation under RCW 36.53.010?  Obviously not.  Nor could the county commissioners prevent the establishment of a ferry approved by the Public Service Commission.  The grant of a license or franchise under RCW 36.53.010 depends upon a finding by the county commissioners that the "ferry is necessary at the point applied for."  As indicated above, that finding cannot be made effectively and consistently under both statutes.  Since RCW 81.84.010 was enacted some seventy-three years later than RCW 36.53.010, we think that the latter has been repealed by implication under the rule of such cases asAbel v. Diking and Drainage Improvement District, 19 Wn. (2d) 356,Rosenthal v. Tacoma, 31 Wn. (2d) 32, and State ex rel. Reed v. Spanaway Water District, 38 Wn. (2d) 393.

            That conclusion finds support in the more general conflict between chapters 81.84 and 36.53 RCW.  The latter provides that the county commissioners will determine the necessity for the ferry and fix the rates, the statute itself setting out standards of operation and service.  All these matters are presently within the jurisdiction of the Public Service Commission, and have been so treated in numerous decisions including the following:  State ex rel. Scofield v. Schaaf, 185 Wash. 354; State ex rel. Washington Navigation Co., v. Pierce  [[Orig. Op. Page 3]]County, 187 Wash. 695; State ex rel. Kitsap Transportation Co. v. King County and Puget Sound Navigation Co., 3 Wn. (2d) 392; and State ex rel. Puget Sound Navigation Co. v. Department of Transportation, 33 Wn. (2d) 448.  We mention the above general conflict only in support of the conclusion stated as to the implied repeal of RCW 36.53.010, without further comment, since your request requires no more.

            We conclude that the county commissioners can no longer grant licenses or franchises for privately operated ferries.  We hope the foregoing analysis will prove to be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General

BERNARD LONGTOT
Chief AssistantAttorney General