OFFICES AND OFFICERS ‑- COUNTY COMMISSIONERS ‑- AUTHORITY TO LEASE AND OPERATE A FERRY

OFFICES AND OFFICERS ‑- COUNTY COMMISSIONERS ‑- AUTHORITY TO LEASE AND OPERATE A FERRY.

The board of county commissioners is authorized to lease and operate a ferry connecting a public highway within the county with a public highway in the state of Oregon.

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                                                                 January 16, 1961

Honorable Alf M. Jacobsen
Prosecuting Attorney
Wahkiakum County
Cathlamet, Washington

                                                                                                                  Cite as:  AGO 61-62 No. 1

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on the following question:

            "May a county lease and operate a ferry connecting a public highway within the county with a public highway in the State of Washington?"

            We conclude that the county may lease and operate such a ferry.

                                                                     ANALYSIS

            It is, of course, fundamental that a county, acting through its board of county commissioners, has only such powers as have been granted to it, expressly or by implication, by the constitution and the statutes of the state.  State ex rel. King County v. Superior Court, 33 Wn. (2d) 76, 204 P. (2d) 514 (1949), and cases cited therein.

            You advise that, faced with a loss of your interstate connection between Puget Island, Washington, and Westport, Oregon, the Wahkiakum board of county commissioners has sought to purchase a suitable ferry, but finding that a suitable ferry was not presently available, the board decided to operate a leased barge and tug on a temporary basis.

             [[Orig. Op. Page 2]]

            RCW 47.04.020 (§ 1, chapter 207, Laws of 1937) classifies all public highways outside of incorporated cities and towns as primary and secondary highways or county roads.  RCW 47.20.460 established a secondary highway numbered 12F to run to the south ferry landing on the south side of Puget Island as follows:

            "Secondary state highways as branches of primary state highway No. 12 are established as follows:

            " . . .

            "Secondary state highway No. 12F; beginning at the town of Cathlamet at the intersection of primary state highway No. 12, and the north approach of the Puget Island bridge, thence crossing the bridge, thence in a general southerly direction to the South Ferry landing, on the south side of Puget Island; . . ."

            Of the various statutes regarding the acquisition and operation of ferries by a county, only two pertain specifically to the operation of an interstate ferry.  The first is RCW 36.54.020 (§ 31, chapter 187, Laws of 1937) which, quoting from the session laws, provides in part as follows:

            "The power is hereby granted the board of county commissioners of any county in the State of Washington to severally or jointly with any other county, city or town, or the State of Washington or any other state or any county, city or town of any other state, construct or acquire by purchase, gift, or condemnation and operate any ferry necessary for continuation or connection of any county road across any navigable water. . . ."

            In an attorney general opinion to Mr. James A. Davis, acting director of highways, under date of December 10, 1940, we pointed out that this statute by its terms is limited to ferries necessary for continuation or connection of any county road.  We conclude, therefore, that this statute is inapplicable to the ferry operation from the south ferry landing, since that terminus is a part of secondary state highway No. 12F.

            The second statute is RCW 36.53.150 (§ 1, chapter 165, Laws of 1921) which, quoting from the session laws, is as follows:

            "That whenever the board of county commissioners of any county shall determine that the construction or  [[Orig. Op. Page 3]] maintenance of a ferry in a state adjoining such county or connecting such county with such adjoining state is of necessity or convenience to the citizens of such county, the board shall have power to enter into a contract for the construction or maintenance of such ferry, or to make such contribution as may be deemed advisable toward the construction or maintenance thereof, and to lease, or grant exclusive permits to use any wharf or landing owned or leased by such board to any person, firm or corporation furnishing, or agreeing to furnish ferry service between such county and such adjoining state."

            This statute is not limited by its terms to a ferry connecting with a county road.  We conclude therefore, that it may be used in this case where the ferry connects with secondary state highway No. 12F in Washington.

            InState ex rel. Allen v. The Public Service Commission, 111 Wash. 294, 190 Pac. 1012 (1920), our court referred to chapter 26, Laws of 1915, which is an earlier version of chapter 165, Laws of 1921, and noted:

            ". . . and in 1915 (Laws of 1915, p. 59; Rem. Code, § 5013-1), the legislature authorized the county commissioners of certain counties to construct and maintain interstate ferries; . . ."  (p. 297)

            Inasmuch as the greater power to construct a ferry is granted by this statute to the board of county commissioners, it is our opinion the lesser power to lease necessarily be also included therein.  Galloway v. Road Improvement District No. 4 of Prairie County, 143 Ark. 338, 220 S.W. 450 (1920).

            The word "maintain" has been given broad meaning by our court.  In State ex rel. King County v. Murrow, 199 Wash. 685, 93 P. (2d) 304 (1939), our court defined the meaning of the word "maintenance" as it was used in the highway act, § 53, chapter 187, Laws of 1937.  The definition adopted by our court is as follows:

            ". . . We do not think that either Krieger or Tompkins, in using the word 'operate,' meant to distinguish it from maintenance, but used that term with reference to one who was carrying on or conducting such a ferry business.

             [[Orig. Op. Page 4]]

            "We are also of the opinion that the word 'maintain,' as used herein, is broad enough to include the term 'operate.'  InPeople ex rel. Reynolds v. Atchison, T. & S. F. R. Co., 300 Ill. 415, 133 N.E. 250, the court stated:

            "'The maintenance of a detention home involves those things having to do with carrying on the business for which it is built or established.  "Maintain" and "operate" have been held to have the same meaning when used in connection with a public institution.'"  (pp. 693-694)

            InState ex rel. Jackson v. King County, 29 Wash. 359, 69 Pac. 1106 (1902), the word "maintain" was held by our court to include the power to make a contract with a private operator to operate the ferry for the county, as was done in that case.

            Inasmuch as the power to construct includes the power to lease and the power to maintain includes the power to operate, we conclude that Wahkiakum county may lease and operate a ferry between Puget Island, Washington, and Westport, Oregon.

            We trust that this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

STANTON P. SENDER
Assistant Attorney General