CITIES AND TOWNS - ELECTIONS - COSTS - LIABILITY OF NEWLY INCORPORATED CITY OR TOWN FOR COSTS OF INCORPORATION ELECTION

CITIES AND TOWNS - ELECTIONS - COSTS - LIABILITY OF NEWLY INCORPORATED CITY OR TOWN FOR COSTS OF INCORPORATION ELECTION.

A newly incorporated city or town, which has been incorporated pursuant to an election held under the provisions of chapter 35.02 RCW is not liable to the county in which it is located for the costs of the incorporation election.

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                                                                    May 9, 1967

Honorable Harold R. Koch
Prosecuting Attorney
Thurston County Court House
Capitol Way
Olympia, Washington

                                                                                                                 Cite as:  AGO 1967 No. 18

Dear Sir:

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

            Where an election is held for incorporation of a city or town under the provisions of chapter 35.02 RCW, and a majority of the votes cast are for incorporation, is the newly incorporated city liable to the county in which it is located for the costs of the incorporation election?

            We answer your question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            The procedure for incorporating cities and towns is comprehensively covered by statutes codified in chapter 35.02 RCW.  In large part, these statutes date back to chapter VII, Laws of 1890 (pages 131-232).  The specific subject of popular elections on the question of incorporation was covered by sections appearing on pages 131-133 of the 1890 session laws, as published.

             [[Orig. Op. Page 2]]

            In Remington's Code of 1915, these particular sections were codified as sections 7434-7436.  On January 26, 1917, the attorney general issued an opinion to the prosecuting attorney of Whitman county (copy enclosed) wherein, with regard to these sections, it was said:

            "Sections 7434-7435 and 7436, Rem. 1915 Code, in substance provides that upon petition of a certain number of the electors of the town residing within certain limits, it shall be the duty of the board of county commissioners to call an election for the purpose of determining whether or not a municipal corporation shall be organized.  No provision appears in this act for the expenses of such an election.  In as much as it is the duty of the county commissioners to hold it however, and since in so acting they act as county officers we think it is clear that the necessary expenses of such an election should be born [sic] [[borne]]by the county."

            Although the sections in question have been subsequently amended, recodified, and ultimately reenacted as a part of chapter 7, Laws of 1965 (enacting Title 35 of the Revised Code of Washington), the observations made by this office in 1917 remain accurate.  There simply is no provision in chapter 35.02 RCW covering the subject of costs of an incorporation election with regard to a city or town.  Notably, however, by way of contrast, in other laws, relating to the incorporation of other types of political subdivisions, the legislature has made express provision for the payment of costs of the incorporation election by the newly incorporated entity.  See, for example, RCW 35.04.080 (intercounty areas), RCW 53.04.070 (port districts), RCW 56.04.080 (sewer districts), and RCW 85.08.040 (diking districts).  It seems logical to assume that had the legislature intended to make cities and towns, incorporated under the provisions of chapter 35.02 RCW, similarly liable for the costs of their incorporation elections, it would have expressly imposed such liability as it did in the above instances.

            In spite of the absence of any provision in the laws governing the incorporation of cities and towns for payment of the costs of their incorporation elections (if successful), we are advised by various public officials that it has been a long-standing practice for county auditors, over the years, to charge the costs of incorporation elections against newly incorporated cities and towns.  Two  [[Orig. Op. Page 3]] statutes, contained in Title 29 RCW (embodying the general laws governing elections) have been called to our attention as lending possible support to this practice.  They are RCW 29.04.020 and RCW 29.13.045, providing, respectively, as follows:

            RCW 29.04.020.

            "The county auditor of each county shall be ex officio the supervisor of all elections, general or special, and it shall be his duty to provide places for holding such elections; to appoint the precinct election officers; to provide for their compensation; to provide ballot boxes and ballots or voting machines, poll books and tally sheets, and deliver them to the precinct election officers at the polling places; to publish and post notices of calling such elections in the manner provided by law, and to apportion to each city, town, or district, its share of the expense of such elections: Provided, That this section shall not apply to general or special elections for any city, town, or district which is not subject to RCW 29.13.010 and 29.13.020, but all such elections shall be held and conducted at the time, in the manner, and by the officials (with such notice, requirements for filing for office, and certifications by local officers) as provided and required by the laws governing such elections."  (Emphasis supplied)

            RCW 29.13.045.

            "Every city, town, and district shall be liable for its proportionate share of the costs when such elections are held in conjunction with other elections held under RCW 29.13.010 and 29.13.020.

            "Whenever any city, town, or district shall hold any primary or election, general or special, on an isolated date, all costs of such elections shall be borne by the city, town, or district concerned.

             [[Orig. Op. Page 4]]

            "The purpose of this section is to clearly establish that the county is not responsible for any costs involved in the holding of any city, town, or district election.

            "In recovering such election expenses, including a reasonable pro-ration [[proration]]of administrative costs, the county auditor shall certify the cost to the county treasurer with a copy to the clerk or auditor of the city, town, or district concerned.  Upon receipt of such certification, the county treasurer shall make the transfer from any available and appropriate city, town, or district funds to the county current expense fund or to the county election reserve fund if such a fund is established.  Each city, town, or district shall be promptly notified by the county treasurer whenever such transfer has been completed: Provided, however, That in those districts wherein a treasurer, other than the county treasurer, has been appointed such transfer procedure shall not apply but the district shall promptly issue its warrant for payment of election costs."

            The first of these two statutes, RCW 29.04.020, originated as § 5, chapter 61, Laws of 1921, which provided as follows:

            "It shall be the duty of the chairman of the board of county commissioners, the county auditor and the prosecuting attorney in Class A counties and counties of the first class in all city, town and district elections held under the provisions of this act to provide places for holding elections, to appoint the election officers, to provide for their compensation, to provide ballot boxes and ballots or voting machines, poll books and tally sheets, and deliver them to the election officers at the polling places, to publish and post notices of calling such elections in the manner provided by law, and to apportion to each city, town or district its share of the expense of such election."

            Certainly, in its inception, the statute related only to city, town and district elections.  However, two years later, the statute was amended so as to read, in material part, as follows:

             [[Orig. Op. Page 5]]

            "The chairman of the board of county commissioners, the county auditor, and the prosecuting attorney in class A counties and counties of the first class, shall constitute an election board for all elections held under the provisions of this act, and it shall be the duty of such board to provide places for holding elections; to appoint the precinct election officers; to provide for their compensation; to provide ballot boxes and ballots or voting machines, poll books and tally sheets, and deliver them to the precinct election officers at the polling places; to publish and post notices of calling such elections in the manner provided by this act and to apportion to each city, town or district, its share of the expense of such election."

            See § 3, chapter 53, Laws of 1923.

            This, for all practical purposes (insofar as the present issue is concerned) remains the language of the statute today, as it appears in RCW 29.04.020,supra.1/

             The other statute above cited, RCW 29.13.045, is of more recent origin.  It was originally enacted as § 5, chapter 257, Laws of 1951, which read, simply, as follows:

            "Every school district shall be liable for its proportionate share of the costs when district elections are held in conjunction with other elections held under sections [[RCW]]29.13.020 and 29.13.030."

            Then, by § 7, chapter 200, Laws of 1963, this 1951 enactment was amended to read as follows:

             [[Orig. Op. Page 6]]

            "Every city, town, and district shall be liable for its proportionate share of the costs when such elections are held in conjunction with other elections held under RCW 29.13.010, 29.13.020 and 29.13.030."

            Finally, by § 5, chapter 123, Laws of 1965, the statute was further amended so as to constitute its present form.

            The difficulty with using either of these two statutes as a basis for supporting the proposition that a newly incorporated city is required to pay the costs of its incorporation election is that the incorporation election is simply not an election with regard to which the legislature has made provision for the imposition of costs.

            Clearly, RCW 29.13.045,supra, imposes liability upon a city or town only for the cost of holdinga city or town election.  As amended by § 5, chapter 123, Laws of 1965, this purpose of the section was expressly spelled out in the following words:

            ". . .

            "The purpose of this section is to clearly establish that the county is not responsible for any costs involved in the holding of any city, town, or district election."

            However, it is equally clear that an incorporation election, held pursuant to chapter 35.02 RCW, is not a city or town election.  Rather, it is an election conducted by the county auditor of the county in which theproposed city is located.  See RCW 35.02.080.

            There is no city at the time the election is held.  There will not be a city as a consequence of the election, unless a majority of the persons voting at the election favor incorporation.  See RCW 35.02.120.

            Manifestly, to suggest that election costs may be imposed upon a newly incorporated city under authority of RCW 29.13.045, supra, is to suggest that, somehow, an election which was not a city election at all at the time it was held becomes a city election if the incorporation proposition is approved notwithstanding that the effective date of incorporation does not occur until all of the votes have been canvassed and the board of county commissioners has filed an order, pursuant to RCW 35.02.130, with the secretary of state.

             [[Orig. Op. Page 7]]

            In the case of RCW 29.04.020, supra, the difficulty is that, although as noted, the original specific reference to city and town elections appearing in § 5, chapter 61, Laws of 1921, was deleted by § 3, chapter 53, Laws of 1923, it does not appear that the purpose of the 1923 amendment was to broaden the statute so as to authorize a county auditor to impose costs upon a city, town or district for an incorporation election which was not, at the time it was held, an election of the city, town or district.  This statute simply does not establish the liability of a city or town for the costs of a particular election conducted, or administered by a county auditor.  Instead, it merely imposes upon the auditor the responsibility for apportioning to each city or town whatever share of the election costs the legislature, by other provision, has declared shall be borne by the city or town.

            It is most certainly true that in determining the meaning of statutory language which is ambiguous, resort may be had to the administrative construction of the language over the years, particularly where there has been no legislative change pursuant to such construction.  SeeSmith v. Northern Pac. R. Co., 7 Wn.2d 652, 110 P.2d 851 (1941).  However, the courts are by no means bound by the construction of statutes by administrative officers.  Clearly, where the legislature itself has, by subsequent enactment, placed a construction upon its own statutes, neither this office nor the courts are at liberty to speculate upon legislative intent.  Carpenter v. Butler, 32 Wn.2d 371, 201 P.2d 704 (1949); Cowiche Growers v. Bates, 10 Wn.2d 585, 117 P.2d 624 (1941).

            Were there any doubt as to the true intent of the legislature, this doubt was, in our opinion, unequivocally removed by the explicit language contained in § 5, chapter 123, Laws of 1965, supra, wherein the legislature stated its express purpose ". . . to clearly establish that the county is not responsible for any costs involved in the holding of any city, town, or district election."  (Emphasis supplied.)