CITIES AND TOWNS ‑- ESTABLISHING BOUNDARIES FOR INCORPORATION

CITIES AND TOWNS ‑- ESTABLISHING BOUNDARIES FOR INCORPORATION

Where a legally sufficient power has been presented to the board of county commissioners praying for the incorporation of a certain described area now unincorporated as a town, the board cannot exclude from the boundaries of the proposed town lands it deems not proper for incorporation, if through the exclusion the population of the remaining is less than 300, which is the minimum population required for incorporation.  RCW 35.27.020, providing that no more than 20 acres of unplatted land belonging to any one person shall be taken into the limits of a town, does not apply to original incorporations.

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

                                                                   March 5, 1957

Honorable John G. McCutcheon
Prosecuting Attorney of Pierce County
Pierce County Courthouse
Tacoma 3, Washington                                                                                                                Cite as:  AGO 57-58 No. 24

Attention:  Thomas R. Garlington

Dear Sir:

            You requested the opinion of this office on the following questions:

            (1) Where a legally sufficient petition has been presented to the board of county commissioners praying for the incorporation of a certain described area now unincorporated as a town, can the board of county commissioners exclude from the boundaries of the proposed town lands it deems not proper for incorporation, even though the exclusion will reduce the population of the remaining area to a number less than 300, which apparently is the minimum population required for incorporation?

             [[Orig. Op. Page 2]]   (2) Does RCW 35.27.020, providing that no more than 20 acres of unplatted land belonging to any one person shall be taken into the limits of towns, apply to original incorporations?

            We answer both questions in the negative.

                                                                     ANALYSIS

            Before directing our attention to an analysis of the aforementioned questions, we feel that because of possible future litigation it is necessary to treat briefly a collateral issue to the first question.  Chapter 35.02 RCW was compiled by the code reviser from §§ 1-3, chapter 7, Laws of 1889-90.  In codifying chapter 35.02 RCW the code reviser dissected §§ 2 and 3 of the session law into several parts and gave each an RCW section number.  The legislature amended several sections of chapter 35.02 RCW in 1953.  The amendments, however, were made directly upon the RCW sections.  Inasmuch as certain sections, one of which was RCW 35.02.070, were not amended, certain parts of §§ 2 and 3, chapter 7, Laws of 1889-90, were not set out in the 1953 amendment.

            Article II, § 37, of our state constitution provides:

            "No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length."

            Our court inMudgett v. Liebes, 14 Wash. 482, 486, in construing this constitutional provision, stated:

            ". . . where a section of an act is amended the section must be set forth at length,and it follows from this that the part of the original section which is not repeated in the amendatory act is repealed, but the part of the original enactment which is repeated remains the same as if there had been no amendment."  (Emphasis supplied.)

            See alsoState ex rel. Gebhardt v. Superior Court, 15 Wn. (2d) 673.

             [[Orig. Op. Page 3]]

            Since RCW has never been accepted by our court as the law of the state, resort should be made to the session laws for purposes of amendment.  Because of the failure of the legislature to do that in 1953 with regard to chapter 35.02 RCW, it is possible that RCW 35.02.070 and other sections of chapter 35.02 RCW constituting parts of §§ 2 and 3 of chapter 7, Laws of 1889-90, not set out in chapter 219, Laws of 1953, have been repealed by implication.

            However, in view of the fact that it is the policy of this office not to rule upon the constitutionality of existing statutes, except under certain circumstances not pertinent here, we presume that chapter 35.02 RCW as amended in 1953 is constitutional.

            Directing our attention to the first question, chapter 35.02 RCW sets out the procedure for incorporation of a town.  RCW 35.02.010 provides that any portion of a county containing not less than 300 inhabitants lying outside the limits of an incorporated city or town may incorporate.  RCW 35.02.020 through 35.02.040 (1953 Supp.) set out the signature, content, checking and publication requirements of the petition for incorporation.  RCW 35.02.050 and 35.02.060 state the manner of presentation and hearing of the petition before the board of county commissioners.  RCW 35.02.070 provides:

            "Upon final hearing on a petition for incorporation the board shall establish and define the boundaries of the proposed city or town, being authorized to decrease but not increase the area proposed in the petition; it must also determine the number of inhabitants within the boundaries it has established."

            Determination of the first question falls upon the construction to be given RCW 35.02.070.  Does this power granted by said statute to the board of commissioners authorize the board to reduce the boundaries of a proposed town so that the boundaries encompass a population of a population less than 300; or is this power of the board to reduce boundaries limited by the other provisions of chapter 35.02 RCW so that proposed boundaries reduced by the board must contain inhabitants numbering at least 300?  A search of case authority has failed to disclose a judicial determination of this question.  Thus, the question must be resolved according to established rules of statutory construction.

            The rule enunciated inHansen v. Harris, 123 Wash. 109, 114, as follows:

             [[Orig. Op. Page 4]]

            ". . . that all the provisions of an act must be considered in their relations one to the other, and a construction placed thereon which will harmonize all, if possible, and give effect to all . . ."

            Again, inDennis v. Moses, 18 Wash. 537, 559, our court stated:

            "It is a wholesome, well established rule that an act should be interpreted or construed to give effect to each of its express provisions, if practicable.  In case of conflict, those susceptible of but one meaning will control those susceptible of two, if the act can thereby be rendered harmonious . . ."

            RCW 35.02.010, by providing that any portion of a county containing not less than 300 inhabitants lying outside the limits of an incorporated city or town may become incorporated, seems to vest the power to incorporate directly in the people.  It is without question that this power of incorporation is qualified by the authority vested in the county commissioners by RCW 35.02.070 to decrease the boundaries of the proposed town.  State ex rel. Cummings v. Johnson, 105 Wash. 93.

            While RCW 35.02.070 is silent as to the extent the county commissioners may decrease the boundaries of a proposed town, it is clear that if this power were unlimited, the county commissioners could by virtue of RCW 35.02.070 absolutely determine whether a town could incorporate.  For example, the commissioners could conceivably reduce the boundaries of a proposed incorporated town until the proposed area contained less than 300 inhabitants and thus failed to comply with the minimum inhabitant requirements for incorporation.  Such a construction of RCW 35.02.070 would be out of harmony with the other provisions of chapter 35.02 RCW.  The aforementioned construction placed upon RCW 35.02.070 would directly conflict with § 1, chapter 7, Laws of 1889-90 (RCW 35.02.010), which provides:

            "Any portion of a county containing not less than three hundred inhabitants, and not incorporated as a municipal corporation, may become incorporated under the provisions of this act . . ."

             [[Orig. Op. Page 5]]   The legislature enacted chapter 35.02 RCW pursuant to the power vested in it by Article XI, § 10, of our state constitution, to-wit:

            "Corporations for municipal purposes shall not be created by special laws; but the legislature, by general laws, shall provide for the incorporation, organization and classification in proportion to population, of cities and towns . . ."

            Construing RCW 35.02.070 to grant county commissioners unlimited powers in the reduction of proposed boundaries would in effect allow county commissioners to usurp the powers vested in the legislature by Article XI, § 10.

            The legislative purpose in granting county commissioners the right to alter the boundaries of a proposed incorporated town may be better understood by considering our court's opinion in Territory, ex rel. Kelly v. Stewart, 1 Wash. 98.  In that case our court overruled the 1888 law governing the incorporation of towns because it vested in the court the power to determine the boundaries of a proposed town.  The court stated in part at page 104:

            "It being conceded that the power to create municipal corporations is vested exclusively in the legislature, the question arises, Can this power be delegated, and, if so, to whom, or to what agencies? . . . It would be practically impossible for the legislature, by a general law, to fix and define the boundaries of every municipal corporation that might be organized under it; and that question is therefore determined in some other way designated by the general law of the particular jurisdiction, . . . But unless specially restrained by the constitutional provisions, the legislature may delegate the power to determine the territorial limits of the municipal corporation, and thereby settle what property and persons will be subject to municipal control, to appropriate local bodies or boards of officers. . . ."

            It is clear from the foregoing quotation that the final fixing of boundaries is a legislative function.  Because it would be practically impossible for  [[Orig. Op. Page 6]] the legislature to directly fix the boundaries of every proposed town, the legislature has bestowed this function, by RCW 35.02.070, upon the quasi-legislative body of county commissioners.  In determining the boundaries the legislature has laid down the single rule that the commissioners may decrease but not increase the area proposed in the petition.  While the power to determine whether an area is to be incorporated lies with the inhabitants of that area, initially by petition (RCW 35.02.020, 1953 Supp.), and ultimately by popular vote (RCW 35.02.080, 1953 Supp.), the fixing of the actual boundaries being a legislative function is placed with the county commissioners.

            Therefore, in order that all sections of chapter 35.02 RCW shall harmonize, we construe RCW 35.02.070 to mean that the power vested in the county commissioners to decrease the area of a proposed incorporated town is necessarily restricted so that all areas so decreased must have at least 300 inhabitants therein.

            RCW 35.27.020, referred to in the second question, was drastically amended by the 1951 legislature.

            Said law as originally enacted in § 15, chapter 7, Laws of 1889-90, provided as follows:

            "Municipal corporations now or hereafter organized are bodies politic and corporate under the name of the city of       , or the town of       , as the case may be, and as such may sue and be sued, contract or be contracted with, acquire, hold, possess and dispose of property, subject to the restrictions contained in other chapters of this act, having a common seal, and change or alter the same at pleasure, and exercise such other powers, and have such other privileges as are conferred by this act:  Provided, That not more than one square mile in area shall be included within the corporate limits of municipal corporations of the fourth class, nor shall more than twenty acres of unplatted land belonging to any one person be taken within the corporate limits of municipal corporations of the fourth class without the consent of the owner of such unplatted land."

             [[Orig. Op. Page 7]]

            The opening phrase, "Municipal corporations now or hereafter organized," by its very terms indicates that this section as enacted applied to towns then being originally incorporated.  All possible doubt, however, was absolved on this point in State ex rel. Cummings v. Johnson, 105 Wash. 93.  Said case involved the original incorporation of a town.  The appellant alleged as error the action of the county commissioners in excluding and including certain property from the proposed boundaries.  The court stated at page 96:

            ". . . Section 7481, Rem. Code, [§ 15, chapter 7, Laws of 1889-90] limits the area to be included in fourth-class corporations to one square mile, and provides that no more than 20 acres of unplatted land belonging to any one person within the corporate limits shall be taken without the consent of the owner of such unplatted land.  Manifestly we cannot find that the board of county commissioners went beyond their power when they included appellant's 20 acres of unplatted land and excluded his 22.15 acres therefrom."

            The 1951 session of the legislature (§ 1, chapter 109, Laws of 1951) amended § 15, chapter 7, Laws of 1889-90, as follows:

            "Section 35.27.020, RCW., as derived from section 15 of 'An act providing for the organization, classification, incorporation and government of municipal corporations,' Laws of 1889-90, page 141, is amended to read as follows:

            "No more than twenty acres of unplatted land belonging to any one person shall be taken into the limits of municipal corporations of the fourth class without the consent of the owner thereof."

            It will be noted that the effect of this amendment was to repeal all but the last phrase of § 15, chapter 7, Laws of 1889-90.  Thus, it is not clear from the wording of the 1951 amendment whether the legislature intended this section in its amended form to cease in its application toward original incorporations.  We believe this may be clarified by referring to the title.  Our court has adopted the prevailing rule that if ambiguity exists in the body of an act, resort may be had to the title to determine the intent of the legislature.  State ex rel. Seymour v. Superior Court, 168 Wash. 361.

             [[Orig. Op. Page 8]]

            The title to chapter 109, Laws of 1951, is as follows:

            "AN ACT relating to annexation of unplatted lands to fourth class municipal corporations, and amending section 35.27.020, RCW [[*sic (RCW 35.27.020)]]."

            The direct and unqualified reference in the title to the word "annexation" definitely limits the application of the provisions of chapter 109 to the incorporation of land in fourth class annexation proceedings.

            Therefore, it is the opinion of this office that by virtue of the 1951 amendment, RCW 35.27.020 no longer refers to original incorporations.

            We trust this opinion will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DOUGLAS HARTWICH
Assistant Attorney General