FRANCHISES, BLANKET ‑- COUNTY ROADS ‑- NOTICE, DESCRIPTION REQUIRED

AGO 1952 No. 425 - Nov 12 1952

Attorney General Smith Troy

FRANCHISES, BLANKET ‑- COUNTY ROADS ‑- NOTICE, DESCRIPTION REQUIRED.

The grant of one franchise to the P.U.D., to replace all existing franchises on county roads, complies with the description in the notice required to be published and posted pursuant to RCW 36.55.040 where said description reads: "all county roads in the County of Grays Harbor."

- - - - - - - - - - - - -

November 12, 1952

Honorable Don G. Abel
Prosecuting Attorney
Grays Harbor County
Aberdeen, Washington Cite as: AGO 51-53 No. 425

Dear Sir:

By your letter of July 24, 1952, you have requested our opinion as follows:

"Grays Harbor County Public Utility District No. 1 has asked the Board of Commissioners of Grays Harbor County to grant a franchise to use the County road right of ways for the operation of power distributing systems. Presently there is in existence a great number of separate franchises from Grays Harbor County to the P.U.D.; the task of keeping track of these franchises imposes a substantial burden on the county engineer and on the P.U.D.

"To do away with this task, I have recommended that the County Commissioners grant one franchise to the P.U.D. to replace all the existing franchises. RCW 36.55.040 requires 'a description of the County road or parts thereof upon which the application for franchise is made.' Will this requirement of a description be met by the words: all county roads in the County of Grays Harbor?"

[[Orig. Op. Page 2]]

Our conclusion may be summarized as follows:

ANALYSIS

The power to grant franchises is a sovereign power resting in the state and may be delegated by the state. Neils v. City of Seattle, 185 Wash. 269, 53 P. (2d) 848. The power to grant franchises for electric light lines has been delegated to county commissioners by RCW 36.55.010, as follows:

"Any board of county commissioners may grant franchises to persons or private or municipal corporations to use the right of way of county roads in their respective counties for the construction and maintenance of water works, gas pipes, telephone, telegraph, and electric light lines, sewers and any other such facilities." (1937 c 187 § 38, part; RRS § 6450-38, part.)

In exercising this power, a board of county commissioners acts as an administrative agency of the state government and must conform to the requirements of the statutes delegating the power. If the statutory procedure is followed, the discretion of the board of county commissioners is not subject to review by the courts, in the absence of any showing of bad faith, arbitrary or capricious action. Considering that the primary use of county roads is for public highways, the board will then exercise its discretion as to whether secondary uses, such as franchises for electric power lines, will substantially interfere with the primary use, granting or denying the application upon a consideration of whether its final action is in the best public interest. State ex rel. York v. The Board of County Commissioners of Walla Walla County, 28 Wn. (2d) 891, 184 P. (2d) 577.

In view of the above, assuming that all other statutory requirements are met, there remains the sole question of whether the description in the notice required to be published and posted pursuant to RCW 36.55.040 is complied with in the instant case by the use of the words: "all county roads in the County of Grays Harbor."

[[Orig. Op. Page 3]]

Two former opinions issued by this office considered similar questions to some extent, but did not appear to affirmatively decide the issue now presented. For your further information, we enclose herewith copies of those opinions, one to the Honorable W. A. Bugge, Director of Highways, dated May 23, 1950 [[Opinion No. 49-51-281]], and the other to the Honorable Cliff Yelle, State Auditor, dated December 21, 1943.

RCW 36.55.040 provides in part as follows:

"* * * The notice shall state the name or names of the applicant or applicants, a description of the county road, or parts thereof, upon which the application for franchise is made, and the time and place fixed for the hearing." (1937 c 187 § 38, part; RRS § 6450-38, part.)

We have been unable to locate any decision of our Supreme Court construing the above statute under the facts now presented, nor have we found a decision of any other court construing a similar statute applicable to a like set of facts. We therefore consider it necessary to resort to the principles of law relating to the sufficiency of description generally.

A deed is an instrument competent to convey the highest estate in land that is capable of being owned. Since a franchise is merely the right to occupy the land of another, it seems reasonable and logical to conclude that such a description of property as is required to be contained in a deed should be sufficient for property required to be described in a franchise. InSylvester v. State, 46 Wash. 585, 595, 91 Pac. 15, it was held that a description in a deed, even though imperfect, was sufficient, where said description was adequate to enable the property to be accurately located. Further, a deed is valid if it contains such a description of land conveyed that the land can be properly and clearly identified, or where the description contains a reference to another instrument which contains a sufficient description. Barth v. Barth, 19 Wn. (2d) 543, 556, 143 P. (2d) 542.

Describing the county roads over which the franchises in question are granted as "all county roads in the County of Grays Harbor" provides such a description of the roads as can be properly and clearly identified, for the board of county commissioners is required to maintain a county engineering office and prepare and keep records, including maps and plans, of all proceedings and orders pertaining to the county roads of such county. RCW 36.75.040, 36.75.050.

[[Orig. Op. Page 4]]

The precise description of such roads, then, is a matter of public record, and any person who may desire to appear at the hearing has the means available to identify the property which will be subject to such franchises. In 55 A.L.R. 163, the general rule is stated as follows:

"By the weight of authority, a deed or mortgage, describing the subject matter as 'all' of the grantor's property, or 'all' of his property in a certain locality, is not defective or void for want of a sufficient description." (See also 12 Words and Phrases 243.)

We therefore can see no good reason why the rule applicable to the sufficiency of a description in a deed are not equally applicable to the sufficiency of a description of property which is the subject of a franchise, as a franchise is but an interest in land.

We conclude that the grant of one franchise to the P.U.D. to replace all existing franchises on county roads, complies with the description in the notice required to be published and posted pursuant to RCW 36.55.040 where said description reads: "all county roads in the County of Grays Harbor." We suggest, as an added precaution, that said notice contain a reference to said county roads, as described by the maps and plans now on file in the office of the county engineer.

Very truly yours,
SMITH TROY
Attorney General

STORRS B. CLOUGH
Assistant Attorney General