OFFICES AND OFFICERS ‑- COUNTY COMMISSIONERS ‑- ROADS ‑- AUTHORITY TO ENTER INTO AGREEMENT WITH CITY COUNCIL TO CONSTRUCT ROAD WITHIN CITY

OFFICES AND OFFICERS ‑- COUNTY COMMISSIONERS ‑- ROADS ‑- AUTHORITY TO ENTER INTO AGREEMENT WITH CITY COUNCIL TO CONSTRUCT ROAD WITHIN CITY.

The board of county commissioners and a city council have the authority under chapter 245, Laws of 1961 (chapter 35.77 RCW) to enter into an agreement whereby the county agrees to construct a road within the city at a mutually agreed cost to the city.

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                                                               September 4, 1962

Honorable Arthur L. Hawman
Prosecuting Attorney
Walla Walla County
Walla Walla, Washington

                                                                                                              Cite as:  AGO 61-62 No. 159

Dear Sir:

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

            Does chapter 245, Laws of 1961, authorize the board of county commissioners to construct a road within the city limits of a city by agreement with the city council, in compliance with chapter 245, at a cost to the city or town mutually agreed upon?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            You have advised us of the following facts giving rise to your request:

            "The Board of County Commissioners desires to build a road connecting two heavily traveled arterial county roads just west of the City of Walla Walla.  This road would be an extension of a county road known as Myra Street.

            "The road would be partially within the westerly city limits of the City of Walla Walla and partially outside the city limits. . . .

            "The County Commissioners . . . are willing to build the road by agreement with the city, in  [[Orig. Op. Page 2]] accordance with Chapter 245, but desire to know whether they can make such a contract for only a nominal consideration or cost to the city of $1.00. . . ." (Emphasis supplied.)

            Chapter 245, Laws of 1961, is entitled:

            "AN ACT relating to cities and counties; authorizing agreements for construction and maintenance of city streets by counties; and adding a new section to chapter 36.75 RCW."

            Section 1 (cf. RCW 35.77.020) to which reference is made in § 2, provides in material part:

            "Any city or town may enter into an agreement with the county in which it is located authorizing the county to perform all or any part of the construction, repair, and maintenance of streets in such city or townat such cost as shall be mutually agreed upon.  The agreement shall be approved by ordinance of the governing body of the city or town and by resolution of the board of county commissioners."  (Emphasis supplied.)

            Section 2 of this act (cf. RCW 35.77.030) provides, in pertinent part:

            "Pursuant to an agreement authorized by section 1, the board of county commissioners may expend funds from the county road fund for the construction, repair, and maintenance of the streets of such city or town and for engineering and administrative services.  Payments by a city or town under such an agreement shall be made to the county treasurer and by him deposited in the county road fund. . . ."  (Emphasis supplied.)

            Thus, clearly, county road funds may be expended for the construction ofcity streets pursuant to an agreement between the city and the county at a cost to the city to be ". . . mutually agreed upon."  See, also, § 5, chapter 82, Laws of 1943 (cf. RCW 36.82.070).

             [[Orig. Op. Page 3]]

            The term "city street" is defined by subsection (f), § 1, chapter 187, Laws of 1937 (cf. RCW 36.75.010 (4)) to mean

            ". . . Every public highway . . . or part thereof, locatedwithin the limits of incorporated cities and towns, except alleys."  (Emphasis supplied.)

            Thus, a public road located within the city limits of a city is, by definition, a "city street."  Accordingly, it follows that chapter 245, Laws of 1961, supra, does authorize the Board of County Commissioners to construct a road within the city limits of a city by agreement with the city council, at a cost to the city to be mutually agreed upon.

            Against this background, your specific question appears to be whether, in the execution of an agreement authorized by chapter 245, Laws of 1961,supra, the board of county commissioners and the city council may mutually agree upon a cost to the city ". . . of one dollar."

            It appears obvious from your letter that the actual cost to the county of construction of the "city street" contemplated would far exceed the nominal amount of one dollar.  However, the legislature has not required that the county charge the city its actual cost of construction.  It has merely provided that the county charge the city a cost to be ". . . mutually agreed upon."

            Furthermore, on the basis of the facts presented, it is apparent that the county believes the road, connecting two heavily traveled arterial county roads will benefit county residents more than it will residents of the city.  We can see no reason, under these circumstances, why, then, a cost to the city ". . . of one dollar" would not be legally permissible.

            Accordingly, we answer your question above stated in the affirmative.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General