ANNEXATION BY ONE CITY OF UNINHABITED CONTIGUOUS TERRITORY WHICH IS PART OF ANOTHER CITY.

CITIES AND TOWNS; ANNEXATION BY ONE CITY OF UNINHABITED CONTIGUOUS TERRITORY WHICH IS PART OF ANOTHER CITY.

 There is no statutory authorization for the annexation by cityA of uninhabited contiguous territory which is part of city B nor can this be accomplished by city B ceding the territory to city A.  However, the same result may be achieved by reduction of the corporate limits of city B and by city A's subsequent annexation of the territory thereby rendered unincorporated.

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                                                                February 29, 1956

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 55-57 No. 214

 Attention:  !ttMr. A. E. Hankins
            Chief Examiner
            Division of Municipal Corporations

Dear Sir:

            You have requested an opinion from this office on the following question:

             "In the event there were no voters in the contiguous territory which is a part of another city which is proposed to be annexed so that the full requirements of Chapter 35.12 [RCW] cannot be met, can a city cede the uninhabited contiguous territory to another city upon the petition of its owner?"

             Your question is answered in the negative.

              [[Orig. Op. Page 2]]

                                                                     ANALYSIS

             The controlling principle governing questions of a city's power to alter its boundaries is stated in McQuillin, Municipal Corporations, Vol. 2, § 7.13, p. 288 (Callaghan & Co., Chicago, 1949) as follows:

             "There being no common-law rights in this respect, municipal corporations, as ordinarily constituted, possess no power to extend or change their boundaries by annexing territory, unless such power is derived from the state legislature, and when such power is conferred it must be exercised under the circumstances and in the manner prescribed.  * * *"

             See also, Wheeler School District v. Hawley, 18 Wn. (2d) 37.

             Chapter 35.12 RCW, sets forth the conditions and procedure under which a city or town may annex contiguous territory that is a part of another city or town.  RCW 35.12.010 provides:

             "Upon the filing of a petition to add to a city or town contiguous territory previously unincorporated or contiguous territory containing not over two thousand inhabitants which is the whole of or part of another city or town, signed by qualified voters of the city or town equal in number to not less than one‑fifth of the number of votes cast at the last municipal election, the council thereof shall submit the question of annexation to the voters in the city or town and also to the voters in the territory proposed to be annexed by a special election called for that purpose."

             Section 9, p. 136, Laws of 1890, upon which the code section quoted above is based, contains the following language:

             "* * *  The council or other legislative body of such corporation shall, upon receiving a petition therefor, signed by not less than one‑fifth of the qualified electors thereof,  [[Orig. Op. Page 3]] as shown by the votes cast at the last municipal election held therein, submit to the electors of such corporation, and to the electors residing in the territory proposed by such petition to be annexed to such corporation, the question whether such territory shall be annexed to such corporation and become a part thereof.  * * *"

             Where the territory to be annexed is uninhabited, the annexation proposal obviously cannot be submitted "to the electors residing in the territory."  For this reason, there can be no compliance with the procedure authorized by the legislature to achieve annexation by one city or town of contiguous territory presently a part of another city or town.

             An examination of the Washington statutes has failed to disclose any legislative authority empowering a city to cede territory to a contiguous city, with or without the consent of the owner of the territory in question.  An alteration of municipal boundaries may not, therefore, be effected through cession.

             It appears to us, however, that the annexation of uninhabited contiguous territory which is part of another city or town is not legally impossible.

             It is suggested that consideration be given to reducing the corporate limits of the town which includes the territory proposed to be annexed so that such territory will become unincorporated.  The procedure to be employed in achieving this result is set forth in chapter 35.16 RCW.  Once the territory in question becomes unincorporated, there emerges the possibility of annexing the territory pursuant to the provisions of RCW 35.13.130 relating to the "petition method" for the annexation of contiguous unincorporated territory.  RCW 35.13.130 provides:

             "A petition for annexation of an area contiguous to a city or town may be made in writing addressed to and filed with the council of the municipality to which annexation is desired.  It must be signed by the owners of not less than seventy-five percent in value, according to the assessed valuation for general taxation of the property for which annexation is petitioned, shall set forth a description of the property according to  [[Orig. Op. Page 4]] government legal subdivisions or legal plats and shall be accompanied by a plat which outlines the boundaries of the property sought to be annexed."

             We hope this opinion may prove to be of some assistance to you.

 Very truly yours,
DON EASTVOLD
Attorney General 

J. CALVIN SIMPSON
Assistant Attorney General