ABILITY TO ESTABLISH DAY CARE SERVICES IN ABSENCE OF SPECIFIC STATUTORY AUTHORIZATION

COUNTIES ‑- POLICE POWER ‑- ABILITY TO ESTABLISH DAY CARE SERVICES IN ABSENCE OF SPECIFIC STATUTORY AUTHORIZATION

There is a sufficient basis in Article XI, § 11 of the Washington constitution for upholding a properly drawn ordinance by which a county, including one which has not adopted a home rule charter pursuant to Article XI, § 4 of the constitution, would establish day care services for the children of working mothers who are residents thereof; the appropriate tests for determining the validity of such an ordinance are (1) whether the enactment falls within the range of concerns which the courts have recognized as acceptable areas for the exercise of the police power and (2) whether the measure represents a reasonable method of reaching an objective of that power.

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                                                                 August 12, 1975

Honorable Robert L. Charette
State Representative, 19th District
P.O. Box 63
Aberdeen, Washington 98520

                                                                                                                 Cite as:  AGO 1975 No. 18

Dear Sir:

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

            In the absence of specific legislation may a county which has not adopted a home rule charter pursuant to Article XI, § 4 of the constitution enact an ordinance establishing certain day care services for the children of working mothers who are residents of the county?

            We answer this question in the manner contained in our analysis.

                                                                     ANALYSIS

            Your inquiry is prompted by a question on which we reserved judgment in AGLO 1975 No. 25 [[to Mary Kay Beeker, State Representative on March 11, 1975]], an opinion dealing  [[Orig. Op. Page 2]] with the ability of a county to expend federal revenue sharing moneys to fund a portion of the costs of operation of a day care center for children of working mothers as operated by a nonprofit corporation.  Our conclusion in that earlier opinion that legislation authorizing such expenditures would probably be required was qualified by the following statement:

            "We say 'probably' only for the sake of not foreclosing a possible use of Article XI, § 11 of our state constitution which provides that:

            "'Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.'

            "Although we would regard the enactment of specific enabling legislation such as House Bill No. 384 or Senate Bill No. 2151, infra, as the safer and surer way to go, it is possible that the same result could be obtained in a given county through the enactment of an ordinance under this constitutional provision.  Accord, AGO 47-49-502 [[to Mr. Lawrence Hubble, Chief Examiner, Division of Municipal Corporations on January 3, 1949]], copy enclosed, in which we said that the police powers of a fourth class city were sufficiently broad to permit the operation of an ambulance in the absence of specific statutory authority.  Such an ordinance would require a recitation that the provision of child care services was necessary for the health, safety and welfare of the locality, and if it were to permit the county to contract for such services and facilities in addition to allowing their direct establishment it would be subject to those same limitations attendant on statutes providing similar authorization, as are discussed elsewhere in this opinion."

            Your present request, in effect, asks us to elaborate on the potential utility of the foregoing constitutional grant of authority to all classes of counties and cities.  A threshold consideration, however, is the relevancy of your stipulation that the county involved is one which has not adopted a home rule charter pursuant to Article  [[Orig. Op. Page 3]] XI, § 4 of the constitution which provides in pertinent part:

            ". . .

            "Any county may frame a 'Home Rule' charter for its own government subject to the Constitution and laws of this state, . . ."

            In earlier opinions we have noted that this constitutional provision is essentially equivalent to Article XI, § 10 which similarly authorizes any city with a population of ten thousand inhabitants, or more, to frame its own charter ". . . consistent with and subject to the Constitution and laws of this state . . ."  See, AGLO 1973 No. 85 [[to Robert K. Leick, Prosecuting Attorney, Skamania County on July 27, 1973 an Informal Opinion, AIR-73585]]and our letter to the King County Prosecuting Attorney of October 7, 1971 [[to Christopher T. Bayley, Prosecuting Attorney, King County an Informal Opinion, AIR-71680]], copies enclosed.  Such charter cities have been held to possess within their jurisdictions the same legislative authority as that possessed by the legislature itself, subject only to those limitations imposed by conflicting acts of the legislature or by the provisions of the home rule charter itself.  See,Winkenwerder v. Yakima, 52 Wn.2d 617, 328 P.2d 873 (1958), and cases cited therein.  Thus there can be no question that such cities ‑ and by the same token any such charter counties1/ - possess the requisite authority to provide by ordinance for the establishment of day care centers for the manifest public purpose of caring for the children of working mothers.2/   This is so regardless of the label attached  [[Orig. Op. Page 4]] to the power thus being exercised ‑ police power or something else.3/   On the other hand, those municipal governments which do not operate under a charter adopted pursuant either to Article XI, § 10 or Article XI, § 4 may exercise only those powers specifically granted by the constitution or the legislature or necessarily implied therefrom.4/   See,Pacific Etc. Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947).  Accordingly, while Article XI, § 11, supra, clearly is a source of such powers the question is whether, somehow, as a grant of police power it is so framed as to require a differentiation between the police powers of a charter county (or city) and those of such counties as have not framed their own "home rule" charters.

            It must be acknowledged that there is an inference in Winkenwerder v. Yakima, supra, supported by language in earlier cases, that the constitution confers broader police powers on first class, charter, cities (and therefore, by necessary implication, on home rule charter  [[Orig. Op. Page 5]] counties) than are allowed to other counties or cities not in those categories.  Likewise, inBrennan v. Seattle, 151 Wash. 665, 276 Pac. 886 (1929), the court observed:

            ". . .  Our decisions render it plain that the local police power of the cities of the first class, to which class Seattle belongs, is, by constitution and general statutory grant, the same as the police power of the state, except as restricted by legislative enactment. . . ."  151 Wash. at 668.

            Such equation of the state's police power with that of cities of the first class only is also to be found in still earlier opinions.  See,Smith v. Spokane, 55 Wash. 219, 104 Pac. 249 (1909), and Shepard v. Seattle, 59 Wash. 363, 109 Pac. 1067 (1910).  The suggestion which emerges from this line of cases is thus that the authority granted to counties and cities to enact police and sanitary regulations is more limited for those municipalities which are not charter counties or cities by reason of Article XI, §§ 4 or 10, respectively, and, therefore, is less extensive than the police power which resides in the state.

            There is, however, a further line of cases which nevertheless demonstrates that Article XI, § 11, supra, is the essential source of the police power for all cities and counties without distinction between those which have adopted home rule charters and those which have not.  A comparison of the police power accorded such local governments by Article XI, § 11 with that recognized in the state is set forth in Detamore v. Hindley, 83 Wash. 322, 145 Pac. 462 (1915), the opinion of the court most frequently cited in connection with the constitutional provision, as follows:

            "[Article XI, § 11] . . . is a direct delegation of the police power as ample within its limits as that possessed by the legislature itself.  It requires no legislative sanction for its exercise so long as the subject-matter is local, and the regulation reasonable and consistent with the general laws. . . ."  83 Wash. at 326-327.

             [[Orig. Op. Page 6]]

            See, also,Tacoma v. Boutelle, 61 Wash. 434, 112 Pac. 661 (1911).  Other decisions of the court which have similarly regarded Article XI, § 11 asthe source of the police power ‑ even for first class cities without reference to Article XI, § 10 ‑ include Allen v. Bellingham, 95 Wash. 12, 163 Pac. 18 (1917);Bungalow Amusement Co. v. Seattle, 148 Wash. 485, 269 Pac. 1043 (1928);Sherman, Clay & Company v. Brown, 142 Wash. 37, 252 Pac. 137 (1927);Spokane v. Coon, 3 Wn.2d 243, 100 P.2d 36 (1940); andLenci v. Seattle, 63 Wn.2d 664, 388 P.2d 926 (1964).

            A few decisions considering the validity of police power ordinances adopted by first class cities either make no reference to Article XI, § 11 (see, e.g.,Shepard v. Seattle, supra), or cite statutes and charters along with Article XI, § 11 as the source of the police power (see,Seattle v. Ford, 144 Wash. 107, 257 Pac. 243 (1927)).  However, to find in the brief excerpts in such opinions a basis for holding that the full range of the police power permitted first class cities or home rule counties is derived from legislation or constitutional provisions other than Article XI, § 11, would be contrary to the clear weight of authority found in those other cases cited above.  The more plausible meaning to be assigned to the occasional decision which does not appear to rely on Article XI, § 11 is that the powers conferred by statute or charter confirm, rather than add to, the authority given to local governments by the constitutional provision.  See,Seattle v. Gervasi, 144 Wash. 429, 258 Pac. 328 (1927).

            Collectively, the foregoing authorities are not in conflict with the court's holding inWinkenwerder v. Yakima, supra, the case generally cited for the proposition that the legislative powers of first class cities are as broad as those of the state itself.  Although the opinion in that case contains incidental references to the police powers of local governments, the decision of the court did not characterize the particular action of the city of Yakima which was in issue as an exercise of the police power.  In support of its holding, the court did cite in passing its prior opinion in Brennan v. Seattle, supra.  That decision in turn, however, relied on Bungalow Amusement Co. v. Seattle, supra, one of the cases referred to above which have held that the police power, coextensive with that of the state within the limited sphere of each county or city, is derived from Article XI, § 11.

             [[Orig. Op. Page 7]]

            We, therefore, initially conclude that the police power conferred on counties and cities by Article XI, § 11, is the same for all such municipalities without regard to their status as home rule charter counties or cities.  Within its jurisdiction, therefore, any county may exercise the police power granted to it by the constitution as fully as might the legislature, subject, however, to the restrictions imposed by statute, other provisions of the constitution, or, in the case of a home rule county or city, subject to those limitations contained in its charter.  With this point having been established, we may turn, now, to the utility of this constitutional grant of authority insofar as a county ordinance providing for day care centers is concerned.

            The appropriate inquiry in testing the validity of a particular exercise of the police power is whether the enactment in issue bears a reasonable and substantial relation to the accomplishment of some purpose which is fairly within the legitimate range or scope of the police power.  See,Lenci v. Seattle,supra.  The objects of this power have, of course, been couched in general terms.  They encompass public peace, health, morals, safety and also the general public welfare.  Tacoma v. Fox, 158 Wash. 325, 290 Pac. 1010 (1930).  The public welfare, in turn, has been defined to include considerations of public convenience and prosperity.  C.B. & Q. Railway v. Drainage Comm'rs, 200 U.S. 561 (1906).  Accord,Sligh v. Kirkwood, 237 U.S. 52, 59 (1915).  In reviewing a measure under challenge the courts will consider whether the particular enactment falls within the general scope of the power rather than its conformity to an abstract definition of the police power formulated in advance.  See, e.g.,Stone v. Mississippi, 101 U.S. 814 (1879).

            The inherent difficulty in marking the limits of the police power is freely acknowledged by the courts which recognize that this essential power of government is imbued with a dynamic attribute, allowing its adaptation to changing concepts of the public interest or welfare.  The following observation on this point is typical:

            "While, formerly, the power was viewed as one of strict and direct application, it has now come to be more favored on account of changed and changing economic and social conditions, and at present is frequently relied on to  [[Orig. Op. Page 8]] sustain laws which affect the common good in only an indirect way. . . . A large discretion is therefore vested in the legislature to determine what the public interest demands and what measures are necessary to secure and protect the same."  Shea v. Olson, 185 Wash. 143, 154, 53 P.2d 615 (1936).

            Likewise, while the more familiar exercise of the police power involves a restriction or similar limitation upon the conduct or activities of those within the acting jurisdiction, even the earlier decisions of the court have acknowledged a wider concern for action by local governments.

            ". . .  While originally it [the police power] was used as a rule to indicate the protective function of the government, its development of late years has been in the direction of the function of the state that cares for the general welfare. . . ."  Tacoma v. Boutelle, 61 Wash. 434, 443, 112 Pac. 661 (1911).

            Both the elastic nature accorded to the concept of the public welfare and the deference shown by the courts to the legislative choices made to further that end obscure the fact that more often than not the court is concerned with the validity of a regulatory or restrictive measure rather than with an ordinance supplying a particular resource ‑ such as, in the instant case, a measure which would make day care services available for the children of working mothers.  It therefore becomes necessary to consider whether the exercise of the police power inherently precludes the adoption of such a program of affirmative action whatever may be its relevance to the public welfare or other recognized objectives of the police power.  In our opinion there is no such implied prohibition.

            In AGLO 1975 No. 25,supra, we noted an earlier opinion of this office which held that the constitutionally granted police power of a fourth class city would permit the operation of an ambulance service even in the absence of specific statutory authority.  See, AGO 47-49 No. 502; accord, AGO 61-62 No. 72 [[to R. DeWitt Jones, Prosecuting Attorney, Clark County on October 11, 1961]].  A similar result has been reached judicially in another jurisdiction.  See,Ray v. City of Owensboro, 415 S.W.2d 77 (Ky.App. 1967).

             [[Orig. Op. Page 9]]

            Where considerations of health have been involved, the courts have unhesitatingly approved the enactment of programs requiring local governments to take affirmative action in advancing the recognized objectives of the police power.  Thus, a city may fill in flood lands presenting a health menace.  Bowes v. Aberdeen, 58 Wash. 535, 109 Pac. 369 (1910).  A city's water supply may be fluoridated.  Kaul v. Chehalis, 45 Wn.2d 616, 277 P.2d 352 (1954); see, also, Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (1964).  Public programs may be instituted for the treatment of infectious diseases.  Graham v. Reserve Life Insurance Company, 274 N.C. 115, 161 S.E.2d 485 (1968).  Local governments have long been permitted (and even required) to provide for garbage collection services without the necessity of statutory authorization.  Spokane v. Carlson, 73 Wn.2d 76, 436 P.2d 454 (1968).

            In these and other decisions there is nothing to suggest that the courts have, for purposes of testing the validity of an ordinance, drawn a distinction between traditional, regulatory measures, on the one hand, and ordinances establishing programs of direct action on the other.  The issues have, instead, been resolved by the results of the courts' examinations of the place of such programs in relation to the recognized range of police power concerns and the reasonableness of the measures in terms of the ends sought.  Nothing in the Washington decisions which have dealt with police power matters indicates that the courts of this state would employ a different method of analysis.

            There is, nevertheless, still some difficulty in predicting whether our courts would, in the absence of legislative sanction, uphold an ordinance providing for county day care services.  While the concept of the public welfare clearly emerges as a prophylactic object of the police power, the parameters for the adoption of affirmative measures in furtherance of that end form a less chartered area.  As certain of the decisions cited above demonstrate, the courts have readily approved of measures prescribing an affirmative rather than regulatory type of action where the object of the action ‑ the protection of the public health ‑ is more easily defined and recognized as a proper subject for application of the police power.

             [[Orig. Op. Page 10]]

            In such cases the method of analysis is the traditional two-fold test:  (1) Is the object of the action within the legitimate concerns for the exercise of the police power; and (2) if so, is the measure involved a reasonable means to accomplish the objective.  While the definition of the public welfare at some particular time and under given conditions may be more elusive than that of the public health, the tests of an ordinance's validity should still be the same where justification is sought in the measure's relevance to the public welfare.  The term "public welfare" can find substance in what has been sanctioned by usage or held by a "strong and preponderant opinion" to be necessary for the public good.  Noble State Bank v. Haskell, 219 U.S. 104, 111 (1911).5/

             It should by now be apparent that the manner of framing an ordinance that provides day care services is of considerable importance.  The relation of the enactment to traditional police power considerations must be established.  While the need for day care services and facilities will vary among localities, in any given community legitimate concerns for the public health or welfare may be raised by situations in which children of a specified age are left unattended for significant periods of time or in which the absence of day care services contributes to a heightened welfare burden by aggravating unemployment or underemployment conditions.  Such findings would be a desirable, if not essential, preamble to a day care ordinance6/ - and,  [[Orig. Op. Page 11]] correlatively, any such ordinance should then go on to establish eligibility standards for use of the facility which demonstrably relate to those findings.

            If the underlying factors supporting the ordinance are consistent with the recognized objectives of the police power, then the reasonableness of the means (the provision for day care services itself) becomes the remaining consideration in testing the validity of the ordinance.  The program for such services may, in fact, be the only method available to the local government for attacking the problem it perceives, although the courts do not even require the best alternative be selected as long as the solution is reasonable.  See, generally, McQuillin, Municipal Corporations, § 24.09 (3rd ed.).

            As we have stated earlier in this opinion, the fact that the ordinance involves affirmative as opposed to regulatory measures should not present significant problems.  Programs for innoculation or fluoridation, which have been sanctioned as a reasonable means for promoting the public health, are preventative in nature.  Similarly, a program of day care services may forestall a heightened welfare case load that would otherwise be caused by lack of opportunity for employment.  The validity of a day care ordinance thus should not turn on the fact that the basis for the exercise of the police power is the more general concept of the public welfare rather than a more limited concern, provided the court can associate the objective of the ordinance with the recognized attributes of the general welfare.

            Beyond these considerations, however, a county may wish to consider whether an enactment which directly provides for  [[Orig. Op. Page 12]] the establishment of day care services or facilities should not, perhaps, be coupled with a regulatory ordinance prohibiting or regulating the leaving of children of prescribed age unattended for defined periods of time.  An analysis by the court of such provisions adopted in tandem would not present a novel issue.  See,Kimmel v. Spokane, 7 Wn.2d 372, 109 P.2d 1069 (1941), in which the court found clear justification for the installation of parking meters by a municipality in its authority under the police power to regulate traffic and parking.  We do not mean to imply that the courts will inevitably require a regulatory measure which prohibits or limits the practice of leaving children of a stated age unattended as a prerequisite for upholding an ordinance which initiates a public program of day care services.  Rather we suggest that the approach, where feasible, represented by such dual enactments may more strikingly illustrate the relationship of day care services to police power concerns, and may, at least in the case of counties or cities which are not home rule charter municipalities, lead to a more ready acceptance of such measures as a legitimate exercise of those powers.

                        SUMMARY

            We summarize our opinion as follows:

            There is sufficient basis in Article XI, § 11 of the constitution for upholding a properly drawn ordinance by which even a noncharter county would establish day care services for the children of working mothers who are residents thereof.  The appropriate tests for determining the validity of such an ordinance are (1) whether the enactment falls within the range of concerns which the courts have recognized as acceptable areas for the exercise of the police power; and (2) whether the measure represents a reasonable method of reaching an objective of that power.

            These criteria should be applied to actions of any county, since the scope of the police power for all such jurisdictions is derived from Article XI, § 11 and is coextensive with that of the state within a county's boundaries unless limited by statute, another provision of the constitution, or in the case of a home rule county, by charter provision.

            Whether an ordinance which makes provision for day care  [[Orig. Op. Page 13]] services will ultimately be sustained will depend on whether the court can identify the objectives of such an action with the traditional concepts of police power activity.  If the court can make this association, the fact that the means to the objective is a program of positive rather than merely regulatory action should not cause the ordinance to fall.

            If, however, the court should find the enactment exceeds the permissible limits of police power intervention, enabling legislation will be required as we earlier observed in AGLO 1975 No. 25, except in the case (1) of home rule charter counties or cities of the first class which have been granted more extensivelegislative powers by Article XI, § 4 and Article XI, § 10, respectively; and (2) of code cities which have statutorily been granted those same more extensive powers by the legislature through its enactment of the optional municipal code ‑ accord, AGO 1972 No. 24,supra.