CITIES AND TOWNS ‑- ANNEXATION ‑- PROCEEDINGS INITIATED BY PETITION OF RESIDENTS IN AREA SOUGHT TO BE ANNEXED ‑- PUBLIC HEARING ‑- NOTICE REQUIRED

CITIES AND TOWNS ‑- ANNEXATION ‑- PROCEEDINGS INITIATED BY PETITION OF RESIDENTS IN AREA SOUGHT TO BE ANNEXED ‑- PUBLIC HEARING ‑- NOTICE REQUIRED.

When an annexation proposal has been initiated by petition of the residents in the area sought to be annexed to a city or town and is approved by the review board, the board of county commissioners of the county in which the city or town is situated must conduct a public hearing, the notice of which must be published at least in a weekly newspaper in each of the two issues immediately preceding the hearing.

                                                              - - - - - - - - - - - - -

                                                                February 28, 1962

Honorable Gordon L. Walgren
Prosecuting Attorney
Kitsap County
245 Fourth Street Building
Bremerton, Washington

                                                                                                                Cite as:  AGO 61-62 No. 99

Dear Sir:

            By letter previously acknowledged you requested the opinion of this office on a question which we paraphrase as follows:

            Pursuant to § 9, chapter 282, Laws of 1961, (RCW 35.13.040) is notice of public hearing on a petition for annexation required to be given daily for a period of two weeks prior thereto, once a week prior thereto, or one notice two weeks prior to the date of hearing?

            In our opinion the notice must be published at least in a weekly newspaper in each of the two issues immediately preceding the hearing.

                                                                     ANALYSIS

            Before answering the specific question which you have propounded, we deem it necessary to first determine whether the statute here in question contemplates publication in a daily or a weekly newspaper.

            Section 2, chapter 245, Laws of 1907, a portion of which was codified as RCW 35.13.040, provided as follows:

            "A petition shall be presented to the board of county commissioners of such county, signed by at least twenty per centum of the qualified  [[Orig. Op. Page 2]] electors of such county, residents within the limits of the territory proposed to be annexed to such city, who voted at the last previous election as shown by the official poll books, which petition shall set forth and particularly describe the boundaries of such territory, and state the number of qualified electors residing within such boundaries as nearly as may be, and shall pray that an election shall be called and held within the limits of such territory for the purpose of submitting to the qualified electors residing therein, the question of such annexation under the provisions of this act.  Such petition shall be filed in the office of such board and at the next regular or special meeting of said board thereafter, said board shall fix date for the hearing of the same, which shall be had not less than two weeks, nor more than four weeks thereafter, and notice of the hearing on said petition shall be published by said petitioners for at least two weeks prior thereto in some newspaper printed and published in such city to which it is proposed to annex such territory.  After the filing of said petition as aforesaid, and pending the hearing of the same and pending the election to be called thereunder, said board shall not consider any other petition involving any portion of the territory embraced therein, provided that said petition may be withdrawn or a new petition embracing other or different boundaries substituted therefor by a majority of the signers thereof, when the same proceeding shall be taken as in the case of an original petition.  Upon the date fixed for the hearing of said petition as aforesaid said board of county commissioners shall hear the same, or may continue such hearing from time to time not exceeding two weeks thereafter, and upon such hearing, if said petition be regular, said board shall grant the prayer thereof."  (Emphasis supplied.)

            This section was amended by § 9, chapter 282, Laws of 1961, and now provides:

             [[Orig. Op. Page 3]]

            "Upon the filing of approval by the review board of a petition to call an annexation election, the board of county commissioners at its next meeting shall fix a date for hearing thereon to be held not less than two weeks nor more than four weeks thereafter, of which hearing the petitioners must give notice by publication for at least two weeks prior thereto in some newspaper printed and published in the city or town to which the area is proposed to be annexed.  Upon the day fixed, the board shall hear the petition, and if it complies with the requirements of law and has been approved by the review board, shall grant it.  The hearing may be continued from time to time for an aggregate period not exceeding two weeks."  (Emphasis supplied.)

            Manifestly, the amendment does not purport to alter those portions relative to publication of notice of hearing.

            We readily concede that the language which we have emphasized is patently ambiguous, and may be interpreted as requiring the notice to be published once a week for two weeks, as requiring publication daily for two weeks, or merely one publication two weeks prior to hearing.

            Our research has failed to disclose any case wherein our supreme court has resolved the problem presented.  However, in an opinion issued by this office on April 28, 1950 [[Opinion No. 49-51-265]], directed to the secretary of state, we considered a situation not unlike the one which now confronts us.  The question posed by that opinion was set forth as follows:

            "Where the legislature has passed certain measures calling for the issuance of general obligation bonds of the state, and such laws have been assigned referendum bill numbers, and are to be submitted to the people for popular vote at the next general election, when and how must such proposed laws be published?"

            This question arose because of some concern over the proper interpretation of § 3, Article VIII, of our State Constitution, which provides in pertinent part:

             [[Orig. Op. Page 4]]

            ". . . such law shall be published in at least one newspaper in each county, if one be published therein, throughout the state, for three months next preceding the election at which it is submitted to the people."

            In the cited opinion we stated:

            "While the language in question has apparently never been construed by our supreme court, the authorities elsewhere are to the effect that one publication a month for the three month period preceding the election is sufficient to satisfy the constitutional requirement.  Thus, the supreme court of Iowa in the recent decision of Knorr v. Beardsley, (Iowa, 1949), 38 N.W. (2d) 236 held that publication of the Iowa Soldiers Bonus Act, once each month for three months (during the months of August, September, and October 1948, preceding the general election of November 2, 1948) constituted compliance with section 5 of Article VII of the Iowa Constitution, the language of which is identical with the portion of section 3, Article VIII of the Washington Constitution quoted above.  A similar ruling was laid down by the Pennsylvania Court inCommonwealth ex rel. Schnader v. Beamish, 309 Pa. 510, 164 A. 615 [[164 Atl. 615]](1932) wherein it was 309 Pa. 510, 164 A. 615 (1932) wherein it was held that under section 1 of Article 18 of the Pennsylvania Constitution, relating to constitutional amendments, and providing that '* * * the Secretary of the Commonwealth shall cause the same to be published three months before the next general election, in at least two newspapers in every county in which such newspapers shall be published * * *', it was proper to publish once each month for the required three months.  We have found no decisions to the contrary."

            From the foregoing, we concluded that publication once a week for three months was sufficient to satisfy the constitutional requirement.  It is our opinion that the only consistent answer to the problem which you now pose is that publication once a week for two weeks would suffice to fulfill the statutory requirement, when a like result has been obtained in considering a similar constitutional requirement.

             [[Orig. Op. Page 5]]

            Furthermore, daily publication for two weeks would be physically impossible in many regions, as our court has previously observed that many areas in this state do not have a daily newspaper printed and published therein.  State ex rel. Swan v. Jones, 47 Wn. (2d) 718, 289 P. (2d) 982 (1955).

            It is a well-established rule of statutory construction that "the courts will presume that the legislature does not indulge in vain and useless actions, and that some significant purpose or object is implicit in every action."  Kelleher v. Ephrata School District, 56 Wn. (2d) 866, 355 P. (2d) 989 (1960).  Obviously, it would be a useless act to require daily publication by a newspaper printed and published in a particular city involved, where such city has no daily newspaper so printed and published.

            Therefore, based upon the foregoing authorities, it is our considered opinion that publication in a weekly newspaper is sufficient to satisfy the requirements of § 9, chapter 282, Laws of 1961.

            Having concluded that publication in a weekly newspaper is permissible under the statute here in question, we pass to the narrower issue of whether the publication must be made once in each of the two weeks immediately preceding the hearing, or only once two weeks prior to the date of hearing.  In this regard, the crucial portion of the statute is that which requires that the notice be published "for at least two weeks prior thereto."  In 17 Words and Phrases, Perm. Ed. 324, et seq., there appears an extensive collection of annotations dealing with publication statutes which use the preposition "for," followed by a specified period of time.  The cases cited in the aforementioned authority hold that as a general rule the word "for" is equivalent to "during," and therefore, the publication must continue through the specified period.  In this particular case, then, publication should be made once in each of the two weeks immediately prior to the date of hearing.

            It is therefore the considered opinion of this office that under § 9, chapter 282, Laws of 1961 (RCW 35.13.040), the notice of publication must be published at least in a weekly newspaper in each of the two issues immediately preceding the hearing.

            In passing it should be mentioned that we have considered herein only the requirements of the statute itself and have made no attempt to discuss what may or may not constitute "substantial compliance" therewith.  This, of course, would be a question of fact.

             [[Orig. Op. Page 6]]

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

CHARLES E. SILJEG
Assistant Attorney General