MUNICIPALITIES ‑- POWER TO IMPOSE TRANSIT SERVICE CHARGES TO MUNICIPAL UTILITY BILLS -- PUBLIC UTILITIES ‑- AUTHORITY OF CITY TO IMPOSE SERVICE CHARGES

MUNICIPALITIES ‑- POWER TO IMPOSE TRANSIT SERVICE CHARGES TO MUNICIPAL UTILITY BILLS --PUBLIC UTILITIES ‑- AUTHORITY OF CITY TO IMPOSE SERVICE CHARGES

A municipality may not impose transit service charges to be added to billings to municipal utility customers for the purpose of extending financial assistance to either municipally owned or privately owned transit systems.

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                                                                 January 28, 1958

Honorable Daniel J. Evans, Chairman
Subcommittee on City Transit & Motor
Vehicle Exemptions, Joint Fact Finding
Committee on Highways, Street & Bridges
4323 East 44th Street
Seattle 5, Washington                                                                                                              Cite as:  AGO 57-58 No. 152

Dear Sir:

            You have requested our opinion as to whether or not cities may impose transit service charges to be added to billings to municipal utility customers in the same manner that sewerage charges are added to water billings in several Washington cities, for the purpose of extending financial assistance to either municipally owned or privately owned transit systems.

            Your question is answered in the negative as it relates both to municipally owned and privately owned transit systems.

                                                                     ANALYSIS

            Authority for cities and towns to acquire and operate utilities is expressly granted by statute.  See generally chapter 80.40 RCW.  Charges made by municipal utility departments to utility users, usually in the form of monthly billings, are based upon authority granted by statute to cities and towns to fix rates and prices of services or commodities actually rendered to utility users.  McCormacks, Inc. v. Tacoma, 170 Wash. 103; Port Orchard v. Kitsap County, 19 Wn. (2d) 59.

             [[Orig. Op. Page 2]]

            With certain exceptions such municipal services are purchased on a voluntary contractual basis by members of the public.  A resident of the city who does not desire a particular service is not required to either subscribe to or pay for such service.

            Statutory exceptions to this rule have been created with reference to utilities having a public health purpose as in the case of garbage disposal.  Thus RCW 35.21.130 provides:

            "A garbage ordinance may:

            "(1) Require property owners and occupants of premises to use the garbage collection and disposal system . . .

            A municipal garbage service charge is nonetheless based upon a service actually rendered to the resident.

            Our research has revealed only one instance where a city or town is authorized to make a utility service charge to persons who may in fact receive no service or commodity from such utility.  This is the charge for sewerage service authorized by section 12 (a), chapter 193, Laws of 1941, (RCW 35.67.320) which provides:

            "Whenever any city or town shall be operating a waterworks utility pursuant to section 9488 of Remington's Revised Statutes of the State of Washington, and in the judgment of the City or Town Council or other corporate authorities the public health is being endangered by the lack of a system of sewerage or the inadequacy thereof, and the danger to the public health may be abated by the construction, maintenance and operation of a sewerage system or of additions, extensions or betterments thereto, such City or Town Council or other corporate authorities may by ordinance provide for the construction of such system of sewerage or of additions, extensions or betterments thereto, and that such system of sewerage, including additions, extensions, and betterments thereto, shall be considered as a part of and belonging to the waterworks utility of such city or town, and that the cost of construction thereof and the maintenance and operation thereof may be chargeable to the waterworks utility of such city or town:Provided, That if a  [[Orig. Op. Page 3]] general indebtedness is to be incurred to pay a part or all of such construction, maintenance or operation costs no such indebtedness shall be incurred without such indebtedness first being authorized by a vote of the people."

            This statute and the procedure of constructing a sewerage system or an addition thereto, combining such sewerage system with the city waterworks system and charging the cost thereof towater users was sustained in Morse v. Wise, 37 Wn. (2d) 806.  There the court said at page 810:

            ". . . Under these statutes, the city acts pursuant to the police power granted to it to provide sewer service to protect the health or its inhabitants and to defray the expense by making service charges. . . ."

            See also 47 OAG 112 (a) [[1947-48 OAG 112a to Lawrence Hubble, Division of Municipal Corporations on July 20, 1948]]approving the combining of a city sewerage system and a city waterworks system under the authority of the same statute. a city waterworks system under the authority of the same statute.

            There exists no comparable statutory authorization for combining a municipal transit system with a municipal waterworks system or any other municipal utility and accordingly there is no basis for including in any class of municipal utility billing a service charge for the support or assistance of a municipally owned transit system.

            From this, and for additional reasons unnecessary to discuss here, it follows that a city cannot add to a municipal utility billing, a service charge for the support of a private transit company.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

THOMAS R. GARLINGTON
Special Assistant Attorney General