AREA SUBJECT TO ANNEXATION TO A CITY PURSUANT TO CHAPTER 128, LAWS OF 1945

AGO 1952 No. 269 - Mar 25 1952

Attorney General Smith Troy

AREA SUBJECT TO ANNEXATION TO A CITY PURSUANT TO CHAPTER 128, LAWS OF 1945.

1. The right of way of a state highway leading from a city, and privately owned property abutting on this highway, and a half mile from the city, are subject to annexation to the city pursuant to chapter 128, Laws of 1945.

2. One publication in an evening paper of notice of hearing to be held the second day following the date of publication is sufficient publication of notice to meet the requirements of chapter 128, Laws of 1945.

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March 25, 1952

Honorable Dale McMullen
State Senator
211 Central Building
Vancouver, Washington Cite as: AGO 51-53 No. 269

Dear Sir:

We wish to acknowledge receipt of your letter of February 28, 1952, wherein you state:

"Some questions have recently arisen here regarding the procedure for the annexation of territory to a city or town under the provisions of chapter 128, Laws of 1945. Would like your opinion on the following questions:

"1. Is the right of way of a state highway leading from and outside an incorporated city area subject to being annexed to the city?

"2. Is privately-owned property situated a half mile from a city and abutting on a highway leading from the incorporated city property subject to annexation to the city under chapter 128?

[[Orig. Op. Page 2]]

"3. Is one publication of the notice of hearing in an evening paper sufficient to meet the requirements of this statute when the meeting is held one day subsequent to the publication of the notice?

"By way of explanation and background, will say that the city council fixed the time for hearing on the petition as 11:00 o'clock a.m. on a Wednesday. Notices were posted after close of office hours on the preceding Friday and was published in the evening paper on Monday. The council attempted to annex the right of way of a state highway and privately-owned property abutting on the highway but lying at least half a mile from the city limits."

Our conclusions may be summarized as follows:

ANALYSIS

In explanation of your first two questions you state:

"* * * The council attempted to annex the right of way of a state highway and privately-owned property abutting on the highway but lying at least half a mile from the city limits."

For purposes of convenience we shall answer your first two questions together.

Section 1, chapter 128, Laws of 1945, § 8908-10 Rem. Supp. 1945, as codified in RCW 35.13.010, provides in part:

"Any portion of a county not incorporated as part of a city or town but lying contiguous thereto may become a part of the city or town by annexation. * * *"

[[Orig. Op. Page 3]]

This statute was interpreted inEvergreen Trailways, Inc. v. Renton, 38 Wn. (2d) 82, 228 P. (2d) 119, where the court stated at page 86:

"Any portion of a county not theretofore incorporated as a city or town lying contiguous to a city or town may become annexed to such city or town and, when so annexed, shall become a part thereof. Rem. Supp. 1945, § 8908-10. When territory is annexed to a city, the authority of the city ipso facto extends over the new territory, and it becomes subject to the control and supervision of the municipal authority. Ettor v. Tacoma, 77 Wash. 267, 137 Pac. 820; Western Gas Co. v. Bremerton, 21 Wn. (2d) 907, 153 P. (2d) 846; 37 Am.Jur. 651, Municipal Corporations, § 34.

"Immediately upon the annexation of Renton Highlands becoming effective, the right of the city of Renton to regulate the use of its streets with respect to transportation for hire, extended to the area annexed. * * *"

37 Am.Jur. 651, Municipal Corporations § 34, cited by the court in the Trailways case,supra, provides:

"The annexation to a municipal corporation of property which has previously been without the corporation is an act of the state, and such property thereafter stands just as any other property within the corporation. A public highway within the annexed territory becomes ipso facto a street of the municipality. * * *"

To the same effect is McQuillin, The Law of Municipal Corporations, (3rd ed.) Volume II, § 7.46.

A case very closely in point on the question presented by your first two inquiries is that of City of Wichita Falls v. Bowen, 143 Tex. 45, 182 S.W. (2d) 695. In that case the City of Wichita Falls annexed a state highway which led from the city limits and two airports abutting on the highway and some three or four [[Orig. Op. Page 4]] miles from the city limits. In reversing the District Court and the Court of Civil Appeals and holding that such annexation was within the statutory authority of a city, the supreme court of Texas stated, at page 698 of the Southwestern Reporter:

"* * * It is true, as shown by the opinion of the Court of Civil Appeals, that the land here annexed is only joined to the City by a narrow neck, but that fact, standing alone, could not render this ordinance void. Neither the statute, Article 1175, supra, nor the charter of the City, defines or provides any length, width, shape, or amount of area of land that the City may annex. It must follow, therefore, that any attack on this annexation ordinance, on account of the shape of the area included therein, if it can be made at all, a matter we do not decide, must be made in a direct proceeding to which the State is a party."

Section 8908-10 Rem. Supp. 1945 (RCW 35.13.010)supra does not define or provide any length, width, shape or amount of area of land that a city may annex, and it is our opinion that the physical shape of the property proposed to be annexed, standing alone, would not render such annexation void.

The answer to your third question depends upon the interpretation of section 2, chapter 128, Laws of 1945 (§ 8908-11 Rem. Supp. 1945, RCW 35.13.140) which provides in part:

"If the petition for annexation filed with the council or commission complies with the requirements of law as proved to the satisfaction of the council or commission, it may entertain the petition, fix a date for public hearing thereon and cause notice of the hearing to be published in one issue of a newspaper of general circulation in the city or town and also posted in three public places within the area proposed for annexation. The notice shall specify the time and place of hearing and invite interested persons to appear and voice approval or disapproval of the annexation. * * *"

[[Orig. Op. Page 5]]

This statute has not been passed upon by our supreme court, but it should be noted that the city council or commission may fix a date for public hearing and cause notice of the hearing to be published inone issue of a newspaper of general circulation in the city or town. This notice shall specify the time and place of hearing, but there is no requirement as to how much time shall elapse between the time the notice is published and the time of the hearing. It should be noted also that the hearing provided for in this statute will not be determinative on the subject of annexation, for RCW 35.13.150 provides in part:

"Following the hearing, the council or commission shall determine by ordinance whether annexation shall be made. * * *"

In the instance with which we are here concerned, the city council fixed the time for hearing on the petition as 11:00 A.M. on Wednesday, and notice was published in the evening paper on the preceding Monday.

Answering your question directly, it is our opinion that one publication in an evening paper of the notice of hearing to be held the second day following the publication is sufficient to meet the requirements of this statute as to publication of notice.

Very truly yours,
SMITH TROY
Attorney General

C. R. NELSON
Assistant Attorney General