POWER OF A MUNICIPALITY TO OWN AND OPERATE A TELEPHONE COMPANY

POWER OF A MUNICIPALITY TO OWN AND OPERATE A TELEPHONE COMPANY.

A city of the first class may not, under existing statutes, own and operate a telephone system.

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                                                                   June 15, 1954

Honorable E. W. Anderson,Chairman
Washington Public Service Commission
Insurance Building
Olympia, Washington                                                                                                Cite as:  AGO 53-55 No. 273

Dear Sir:

            This is to acknowledge your recent letter wherein you requested this office to advise you whether a city of the first class, under existing law, may own and operate a telephone system, or own such system to be operated by others under contract.

            Our conclusion is that a city of the first class may not, under existing statutes, own or operate a telephone system.

                                                                     ANALYSIS

            The question you have posed requires an inquiry into the statutory powers of a municipality.  As a general principle, the law is well established that a municipal corporation possesses and can exercise only those powers granted in express words and those necessarily or fairly implied or incidental to the powers expressly granted.  Farwell v. City of Seattle, 43 Wash. 141; Christie v. Port of Olympia, 27 Wn. (2d) 534.  Stated another way, municipal corporations cannot exercise powers except those expressly granted or those necessarily implied from granted powers and if there is a doubt as to whether the power is granted  [[Orig. Op. Page 2]] it must be denied.  Pacific First Federal Savings and Loan Assn. v. Pierce County, 27 Wn. (2d) 347.

            With these standards firmly established by our court, the next inquiry must be to determine if the legislature has conferred upon municipalities the power to own or operate telephone companies.  In our view none of the statutes of general application to municipalities nor those statutes specifically pertaining to cities of the first class as set forth in chapter 35.22 RCW empower a municipality to own or operate a telephone company.

            RCW 35.22.280 defines the specific powers of a city of the first class.  It is unnecessary to set forth in full this section, for in our view there is no express grant nor any language therein from which it may be implied that a city of the first class may own or operate a telephone company.  We know of no decision involving the question of whether a municipal corporation may own or operate a telephone company.

            While it is true that certain provisions of Title 80 RCW pertaining to the regulation of public service companies (namely RCW 80.04.010 and 80.04.500) make reference to cities or towns owning or operating telephone companies, we can attach no significance to these provisions for purposes of the instant inquiry.  The powers of a municipality must be determined from the statutes setting forth those powers and not from statutes embracing other subjects not purporting to be a grant of power.

            Accordingly, in our view, existing statutes pertaining to the powers of municipalities do not expressly confer nor by implication grant a city the power to own or operate a telephone system.

Very truly yours,

DON EASTVOLD
Attorney General

ROBERT L. SIMPSON
Assistant Attorney General