ROAD BUILDING POWERS OF SEWER DISTRICT

ROAD BUILDING POWERS OF SEWER DISTRICT

A sewer district may not construct a road upon private land, in lieu of money consideration, to pay the owner thereof for a parcel of land purchased from him for a sewage treatment plant site.

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                                                              September 23, 1954

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 53-55 No. 323

Attention:  !ttMr. A. E. Hankins, Chief Examiner

            Division of Municipal Corporations

Dear Sir:

            In a recently acknowledged letter you ask our opinion upon the propriety of a proposed scheme for the acquisition of a sewage disposal plant site by a sewer district.  It appears that the district has tentatively selected a site which is deemed satisfactory for its purpose.  The commissioners desire to pay for the site by constructing a road, approximately one mile in length, upon other land belonging to the same owner; the commissioners are of the opinion that this procedure would be less expensive than acquisition by condemnation.  It appears that the road is not essential to the proper functioning of the sewer district, but it would be helpful.

            It is our opinion that such a procedure would be illegal.

                                                                     ANALYSIS

            Sewer districts are created by RCW 56.04.020:

            "Sewer districts for the acquisition, construction, maintenance, operation, development, reorganization, and regulation of a system of sewers, including treatment  [[Orig. Op. Page 2]] and disposal plants and all necessary appurtenances, and providing for additions and betterments thereto, are hereby authorized to be established or reorganized.  * * *"

            Such districts are given the power by RCW 56.08.010 (1953 Supp.) to:

            "* * * acquire by purchase or by condemnation and purchase all lands, property rights, water, and water rights, both within and without the district, necessary for its purposes.  * * * A district may erect sewage treatment plants, within or without the district, * * *"

            A sewage district has express statutory power to construct a treatment plant as here contemplated.  The statute allows the site for such a plant to be acquired, however, only by "purchase or by condemnation and purchase."  The question then arises whether the acquisition scheme here contemplated is a "purchase" within the meaning of the statute.

            In defining the word "purchase" a semantical problem arises.  The word in the early days of its history was used in a broad sense, meaning to try to procure or bring about; to endeavor; to strive; to obtain, procure, acquire or manage.  In more recent times, however, the word has been and is used synonymously with "buy," meaning to acquire by the payment of money or its equivalent.  (This "equivalent" would be credit, commercial paper or the like.)  VIII Oxford English Dictionary 1613, 2 Funk & Wagnall's New Standard Dictionary of the English Language 2012, Webster's New International Dictionary (2nd Ed.) 2014, Black's Law Dictionary (3rd Ed.) 1467.

            We believe it may be fairly said that the common and ordinary usage of the word "purchase" now, and at the time of the passage of RCW 56.08.010, implies the obtaining of property by use of money, as opposed to "bartering" or "trading," as here contemplated.

            The rhetorical and grammatical construction of the first sentence of this statute further bears this out.  It should be noted that there is an absence of any words having a meaning broader than "purchase."  Also, the word "purchase" is twice used in the same sentence, and clearly, in the second usage, it implies paying for property with money.  The inference is that in both instances, the legislature had the same meaning in mind.

             [[Orig. Op. Page 3]]

            Even if the term "purchase" could be defined differently, another and probably more important reason compels the conclusion we have reached.  A detailed examination of RCW title 56 on sewer districts, and particularly RCW 56.08.010 (1953 Supp.) enumerating the powers of such districts, discloses no express authority to construct roads.  Nor do we think that this power could be implied as necessary to the exercise of those granted, with the exception of a situation in which access to a district facility is not practical by any other means.  In this case, there is adequate access by means of another route, consequently construction of the proposed road could not be considered reasonably necessary in the carrying out of the powers expressly granted.  The district could not assume a power which it does not have in order to create consideration for a purchase.  The rule is the same as that which limits municipal corporations.  See 10 McQuillin (3rd ed. 1950) 189, Contracts, sec. 29.06, above note 6.

            We believe that the acquisition of this sewage disposal plant site, as here contemplated, is not a "purchase" within the meaning of the statute.  It is rather a barter.  The proposed plan is not in accord with the law.

Very truly yours,

DON EASTVOLD
Attorney General

KEITH S. BERGMAN
Assistant Attorney General