The Yakima herald. [volume] (North Yakima, W.T. [Wash.]) 1889-1914, 1908-09-02

sioners to enter into contracts with
the state highway commissioners for
| the construction of these improved
roads under the jurisdiction OF the
state is obnoxious to that provision
of our constitution which provided:
"No bill shall embrace more than one
subject, and that shall be expressed
in the title.'
1t is very apparent that the legis-
lature considered that the board of
county commissioners had not the
power without the enactment of some
special statute, to enter into any such
contract as this. The ordinary pow
ers of the board of county commits
sioners are found and enumerated
in section 342 of Ballinger's Code,
and 1t is very clear that none of those
powers therein enumerated would be
sufficient to support such a contract
as is authorized by this section Of
the statute.
AS an example of the limited pow
ers of the board of county commits
sioners we call attention to chapter
~ of the laws of 1907, found on page
"a thereof, which authorizes the
county commissioners of any county
to acquire and operate quarries of
suitable road building rock, and to
purchase rock crushing machinery
and appliances. Tt is quite clear
that the county commissioners had
not the power conferred by the last
mentioned statute previous to its
enactment, and therefore the legls-
lature enacted a special law confer
ring upon them that power.
AS boards of county commission
ers have only the powers which are
expressly conferred upon them by
law, of those which are necessarily
implied from powers which are ex-
pressly conferred or are necessarily
incidental to these express powers,
unless the power has been conferred
expressly upon the board of county
commissioners to enter into the con-
tract in question, by some statute
which is not obnoxious to the con-
stitutional provision first above men,
tionel. the board of county commits
sioners have not the power to make
that contract.
1t seems very clear that it is not
necessary for the construction of this
road under the state supervision and
control, that the county should bid
upon the same, or do the work, as
the statute expressly provides for
bids by individuals and the letting
of the contract to the lowest bidder.
It is very clear also that this contract
is a contract between the county and
the state. or the state highway board
representing the state, otherwise the
county would be contracting with it.
self if it was building the road AS
the title of the law simply provides
for the improvement of public high
ways and the payment of the cost
thereof, and such improvement can
be made by the state and in the nat
ural and usual course of procedure
would be made by the state without
having the county do the work I'M
der contract with the state, and as
the statute attempts to confer upon
the county commissioners powers
which are not necessary to carry out
the purposes of the law and which
they would not otherwise possess.
| VIC UCiiCNC Iudl pOleiOH VI tHS law III
question to be unconstitutional and
that such contracts would be void
and that taxpayer could enjoin the
county from proceeding with the exc
cution of the contract.
We do not express any opinion as
to whether this provision of the stat
ute is unconstitutional because it al
lows the county to compete with indi-
viduals in the construction of the
road. as we believe that the statute
is more clearly unconstitutional on
the foregoing grounds than upon the
ground here suggested.
We will say, however, that We have
made very careful examination of
all the decisions bearing upon the
subject, also of our state constitu-
ton. and the whole statute providing
for the construction of state aid
roads. and are of the opinion after
such examination that this provision
of the law would not be unconstitu-
tional on the ground which we I'M
derstand was suggested by the attor-
neys for the bonding company. This,
however. is very close question and
one upon which there might well be
diversity of opinion among lawyers
as there has been among courts, but
unless a provision of law is clearly
unconstitutional we would hesitate
to give as our opinion that 1t was
such. Respectfully submitted,
HARCOURT M. TAYLOR,
Deputy Prosecuting Attorney.