HIGHWAY COMMISSION ‑- FRANCHISES ‑- AUTHORITY TO REFUSE TO GRANT

HIGHWAY COMMISSION ‑- FRANCHISES ‑- AUTHORITY TO REFUSE TO GRANT

The Washington State Highway Commission cannot be compelled to grant franchises under RCW 47.44 or 47.52 except by a court of competent jurisdiction, and then only upon a showing that the refusal to grant a franchise was occasioned by fraud or manifest abuse of discretion.

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                                                                    July 10, 1953

Washington State Highway Commission
Transportation Building
Olympia, Washington                                                                                                                Cite as:  AGO 53-55 No. 88

Attention:  Mr. H. C. Higgins

Gentlemen:

            You have, under date of June 30, 1953, requested our opinion whether the Washington State Highway Commission can be compelled to grant franchises on public highways under chapter 47.44 RCW or upon limited access facilities under chapter 47.52 RCW.

            Our conclusion may be summarized as follows:

            The Washington State Highway Commission cannot be compelled to grant franchises under chapter 47.44 RCW or chapter 47.52 RCW except by a court of competent jurisdiction, and then only upon a showing that the refusal to grant a franchise was occasioned by fraud or manifest abuse of discretion.

                                                                     ANALYSIS

            RCW 47.44.010 provides in part:

            "The directormay grant franchises * * * to use any state highway * * *" (Emphasis supplied)

             [[Orig. Op. Page 2]]

            RCW 47.44.020 provides in part:

            "After the hearing,if the director deems it to be for the public interest, hemay grant the franchise in whole or in part, under such regulations and conditions as he may prescribe * * *" (Emphasis supplied)

            RCW 47.44.030 provides:

            "If the directordeems it necessary that such a facility be removed from the highway for the safety of persons traveling thereon or for construction, alteration, improvement, or maintenance purposes, he shall give notice to the franchise holder to remove the facility at his expense and as the director orders."  (Emphasis supplied)

            RCW 47.44.040 provides that franchises across joint bridges "shall be granted in the same manner as provided for granting a like franchise on a state highway."

            RCW 47.44.050 provides that the director "may" grant permits, subject to cancellation at any time, for short distances.

            RCW 47.44.060 provides:

            "A person who constructs or maintains on, over, across, or along a state highway any such facility, without having first obtained and having at all times in full force and effect a franchise or permit to do so shall be guilty of a misdemeanor and each day of violation shall be a separate offense."

            RCW 47.52.025 extends the authority of the director with respect to franchises to apply to limited access facilities.

            Under both the letter and the spirit of the above quoted statutes the grant or rejection of franchises is purely discretionary with the director.  The use of the word "may" in these statutes is permissive only and operates to confer discretion.  This is in accord with the general rule.  SeeFaunce v. Carter, 26 Wn. (2d) 211, 215 and cases cited.

             [[Orig. Op. Page 3]]

            The legislature has, by chapter 47.44 RCW exercised its power to regulate the use of highways for such special purposes as are evidenced by franchises.  It has, by RCW 47.44.060 provided a penalty for any such special use of the highways without a franchise or permit.  Thus, the inherent or common law right, if any, which the public in general may have had to use highways for such special purposes as are here involved, is subject to and governed by chapter 47.44 RCW.  See 25 Am.Jur. 463-479 (Highways, §§ 168-180); 23 Am.Jur. 713, et seq. (Franchises).

            The State Highway Commission is vested with the powers and duties of the director of highways by RCW 43.27.100.  It is our opinion that the Highway Commission may reject applications for franchises whenever in its discretion it determines that the public interest will be best served by rejection.  This exercise of discretion will be upheld by the courts in the absence of a clear showing that the discretion was abused, or that the rejection was the result of arbitrary or capricious conduct, or that the applicant has been discriminated against.

Very truly yours,

DON EASTVOLD
Attorney General

WILLIAM C. HALLIN
Assistant Attorney General