State v. King County, 6

• Decision Date: 14 October 1968
• Docket Number: R,No. 40127,No. 6,6,40127
• Citation: 446 P.2d 193,74 Wn.2d 673
• Court: Washington Supreme Court
• Parties: The STATE of Washington; Washington State Board of Community College Education; and the Board of Trustees of Community College Districtespondents, v. KING COUNTY, a legal subdivision of the State of Washington; Grace G. McGonkey and John Doe McGonkey, her husband; Queen City Savings and Loan Association; Ridgewood, Inc.; and Unknown Persons, whether owners, other claimants, or their heirs or devisees, Petitioners.

Page 673

74 Wn.2d 673

446 P.2d 193

The STATE of Washington; Washington State Board of Community

College Education; and the Board of Trustees of

Community College District No. 6, Respondents,

v.

KING COUNTY, a legal subdivision of the State of Washington;

Grace G. McGonkey and John Doe McGonkey, her husband; Queen

City Savings and Loan Association; Ridgewood, Inc.; and

Unknown Persons, whether owners, other claimants, or their

heirs or devisees, Petitioners.

No. 40127.

Supreme Court of Washington, Department 2.

Oct. 14, 1968.

Hullin, Ehrlichman, Roberts & Hodge, John D. Ehrlichman, Seattle, for petitioners.

John J. O'Connell, Atty. Gen., Thomas Greenan, Sp. Asst. Atty. Gen., Seattle, for respondents.

HAMILTON, Judge.

This case comes here pursuant to a writ of certiorari issued by this court to review an order of public use and necessity entered by the King County Superior Court in a condemnation proceeding. The purpose of the eminent domain proceeding is to acquire land located in what is known as the Ridgewood district of Seattle for the proposed South Campus of the Seattle Community College. The questions before this court concern interpretation of the Community College Act of 1967, Laws of 1967, Ex. Sess., ch. 8.

In enacting the Community College Act of 1967, now codified as RCW 28.85, the legislature substantially altered former community college regulations. Among other changes, the 1967 act vested general supervisory control in the Washington State Board for Community College Education (the 'state board'), and vested ministerial control in the boards of trustees of 22 new community college districts established throughout the state. The Seattle Community College falls within the jurisdiction of the board of trustees of Community College District No. 6 (the 'local board').

This action was initially commenced on August 31, 1966, in the name of Seattle School District No. 1. After the 1967 legislative changes in community college regulations, the State of Washington, Washington State Board for Community College Education, and the Board of Trustees of Community College District No. 6 were substituted as parties for Seattle School District No. 1. On January 8, 1968, the trial court entered an order of public use and necessity as to the land sought by the state board. It is from this order that petitioners in this court seek review.

In their brief, petitioners make three assignments of error. Their first assignment of error questions whether the state board validly exercised its power of eminent domain.

On November 2, 1967, the state board issued resolution No. 11--67, which is as follows:

A majority of the quorum of the College Board herewith authorizes Community College District No. 6 to acquire the following described property, solely with local funds which are available for said acquisition:

Area bounded on the South by S.W. Morgan; on the East by 12th Avenue S.W.; on the North by S.W. Brandon; and on the West by center of blocks between 15th Avenue S.W. and 16th Avenue S.W.

The State Board for Community College Education also authorizes Community College District No. 6 to acquire said property either by purchase or by condemnation, provided that all condemnation actions to acquire said property shall be brought in the name of the State Board for Community College Education.

Petitioners contend that the actual effect of this resolution is to make the local board the condemnor, despite the fact that the action is being brought in the state board's name. It is their position that the Community College Act of 1967 provides only the state board with the power of eminent domain ¹ and that the resolution is an unlawful attempt on the part of the state board to delegate this power to the local board.

The power of eminent domain is an attribute of sovereignty; it is an inherent power of the state. Miller v. City of Tacoma, 61 Wash.2d 374, 378 P.2d 464 (1963). Legislative delegations of eminent domain power may be conditioned and restricted as desired, subject only to constitutional limitations. King Cy. v. Theilman, 59 Wash.2d 586, 369 P.2d 503 (1962). A purported delegation of eminent domain power will be strictly construed. City of Tacoma v. Welcker, 65 Wash.2d 677, 399 P.2d 330 (1965). No such delegation will be found unless it exists by clear legislative expression or necessary implication. City of Des Moines v. Hemenway, 73 Wash.Dec.2d 128, 437 P.2d 171 (1968); King Cy. v. City of Seattle, 68 Wash.2d 688, 414 P.2d 1016 (1966). For these reasons, redelegations of eminent domain powers are generally held to be invalid, and if petitioners are correct in their contention that the local board is the real condemnor, pursuant to an attempted delegation of power by the state board, it would follow that the order of public use and necessity was improperly issued.

It is our judgment, however, that the state board's resolution No. 11--67 does not constitute an attempted delegation of eminent domain power. Rather, the state board simply authorized the local board to carry out the mechanical and procedural functions necessary for the state board to obtain title to the desired land. ² Nothing in resolution No. 11--67 suggests that the power of eminent domain itself was to have been delegated.

Statutory authority exists for the state board to delegate the ministerial functions of obtaining the desired land to the local board. RCW 28.85.090(8) empowers the state board to establish procedures for capital construction, and the last sentence of the section gives the state board eminent domain power. RCW 28.85.340 gives the state board the power to permit local boards to acquire sites for capital construction, ³ and RCW 28.85.140(4) permits local boards to establish new facilities for colleges if done under the approval and direction of the state board.

Equally important, the actions of the state board in the principal case are consistent with the over-all legislative scheme of the Community College Act of 1967. For example RCW 28.85.090 gives the state board general supervision and control over the community college system and enumerates certain duties which the state board will have. Each of these duties is supervisory, rather than ministerial. By contrast, RCW 28.85.140 gives local boards powers and duties which are ministerial in nature and which are subject to varying degrees of control by the state board. In short, the Community College Act of 1967 is structured in such a way as to give the state board supervisory control over the affairs of the community college system and the local boards day-to-day ministerial control, subject to supervision of the state board, over the affairs of their individual community college districts.

In our judgment, delegation of ministerial functions to local boards in connection with eminent domain proceedings, as was done in the instant case, conforms to the specific statutory language and general statutory scheme of the 1967 act. We hold that, under the 1967 act, such delegations by the state board are permissible, provided the state board exercises supervisory control commensurate with retention of the eminent domain power in itself.

Petitioners' second assignment of error is to the trial court's refusal to dismiss the local board as a party to the action. It...