CITIES AND TOWNS - FIRST CLASS - AUTHORITY TO ANNEX CONTIGUOUS TERRITORY IN ANOTHER COUNTY

CITIES AND TOWNS - FIRST CLASS - AUTHORITY TO ANNEX CONTIGUOUS TERRITORY IN ANOTHER COUNTY.

A city of the first class lying wholly within one county can annex contiguous territory in another county.

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                                                                   May 19, 1959

Honorable John G. McCutcheon
Prosecuting Attorney
Pierce County
County City Building
Tacoma, Washington                                                                                                    Cite as:  AGO 59-60 No. 37

Attention:  !ttMr. Keith D. McGoffin, Chief Civil Deputy

Dear Sir:

            By your letter of March 27, 1959, previously acknowledged, you requested the opinion of this office on the following question:

            "'Can a city of the first class, lying wholly within one county, annex contiguous territory in another county?'"

            We answer your question in the affirmative.

                                                                     ANALYSIS

            We observe at the outset the recent expression of our supreme court inPort of Tacoma v. Parosa, 52 Wn. (2d) 181, 184, 324 P. (2d) 438 (1958), that

            ". . . in the absence of constitutional limitations, the power of a state legislature over the boundaries of the municipalities of the state is absolute, and that the legislature has power to extend the boundaries of a municipal corporation,  [[Orig. Op. Page 2]] or to authorize an extension of its boundaries, without the consent of the inhabitants of the territory annexed, or the municipality to which it is annexed, or even against their express protest.  [Citing authorities]"

            See, also,Goodnoe Hills School District No. 24 v. Forry, 52 Wn. (2d) 868, 329 P. (2d) 1083 (1958); Wheeler School District v. Hawley, 18 Wn. (2d) 37, 137 P. (2d) 1010 (1943).  A search fails to reveal any constitutional inhibition to the annexation under consideration.  Thus, authority for the annexation presently in question must be found, if at all, in the statutory laws of the state.

            Section 1, chapter 128, Laws of 1945, p. 327, (cf. RCW 35.13.010) provides, in part:

            "Any portion of a county not heretofore incorporated as a city or town lying contiguous to any city or town may become annexed to such city or town under the provisions of this act, and when so annexed shall become a part of said city or town: . . ."

            It is to be noted that the language of this section conveys a very broad power with respect to annexation.  Nowhere in this section, or in any other section of this act, is transgression of county boundary lines inhibited.

            However, as stated inPortsmouth Savings Bank v. Smith, (Kan.) 86 Pac. 462 463 (1906):

            ". . . The extension of a city across a county boundary is so unusual and is attended with such manifest practical inconveniences growing out of the relation of the municipal and county governments that an intention to authorize such an act should not be lightly inferred from the use of general language, but should be evidenced by express terms or by the clearest implication."

            InTabor & N. Ry. Co. v. Dyson, 86 Iowa 310, 53 N.W. 245 (1892), an incorporated town located in one county purported to annex contiguous territory located in another county.  The supreme court of Iowa referred to the statute authorizing original incorporation, construed the same, and held that under it, the town could not have been originally incorporated to include territory in two counties.  The court could find no reason "why there should be a limitation at the original organization of an incorporation  [[Orig. Op. Page 3]] to a part of one county, and then to permit it, by annexation, to embrace parts of two or more counties."  The annexation was held invalid.

            A similar result was reached in Town of Elsmere v. Tanner, 245 Ky. 376, 53 S.W. (2d) 522 (1932), wherein the town of Elsmere, Kenton county, undertook to annex adjacent territory situated in Boone county.  The court noted that the statutes authorizing annexation provided for court tests in the "circuit court ofthe county" and that this, by implication confined the limits of a city to the county in which it was situated.

            The reasons which prompted the courts of Iowa and Kentucky to disapprove the annexation by a city of contiguous territory lying in an adjoining county do not appear applicable to Washington law.

            First:  Under the provisions of chapter 345, Laws of 1955 (cf. chapter 35.04 RCW), our legislature has particularly authorized the incorporation of any area lying in two or more counties which is not incorporated as a municipal corporation (§ 2).  Hence, if the city of Tacoma had not been previously incorporated, it could, at this time, incorporate and include within its boundaries the territory which it now contemplates annexing.  This overcomes the principal objection noted in Tabor & N. Ry. Co. v. Dyson, supra.

            Second:  The fact that practical inconveniences may result from having one municipal corporation embrace territory in two or more counties (Town of Elsmere v. Tanner, supra,) did not prevent our legislature from authorizing the incorporation of territory embracing more than one county (chapter 345, Laws of 1955).

            Section 1, chapter 128, Laws of 1945, (above quoted, in part) appears to be clear, unambiguous and devoid of uncertainty, hence not open to construction.  State v. Houck, 32 Wn. (2d) 681, 203 P. (2d) 693 (1949).  It authorizes the annexation of "any portion of a county . . . lying contiguous to any city or town."  Had the legislature intended to limit such annexation to contiguous territory within the county in which the city or town is situated there would exist no apparent necessity for the following underscored provision found in § 4.

            ". . . Upon passage of the ordinance of annexation a certified copy shall be filed with the board of county commissioners of the county in which the annexed property is located."  (Underscoring supplied.)

            Similar considerations have compelled the courts of other jurisdictions to conclude that the annexation by a municipal corporation in one county of  [[Orig. Op. Page 4]] contiguous territory situated in another county was within the power granted by statute.  Some of the decisions so holding are:Portsmouth Savings Bank v. Smith, supra; Village of Wakefield v. Utecht, (Neb.) 133 N.W. 240 (1911); Palmer v. Town of Skiatook, (Okla.) 220 P. (2d) 273 (1950);Schildnecht v. City of Joplin, 226 Mo. App. 47, 41 S.W. (2d) 590 (1931).  While in none of these cases were the statutes considered identical to ours, the similarities are such that we think the reasoning of these cases is appropriate and should be applicable to Washington law, at least insofar as chapter 128, Laws of 1945, is concerned.

            Another and different method and procedure for annexation is provided in chapter 245, Laws of 1907, p. 676, as amended by chapter 110, Laws of 1937, p. 441, chapter 248, Laws of 1951, p. 786 and chapter 239, Laws of 1957, p. 939.  Under these statutes, a petition may "be presented to the board of county commissioners, signed by at least twenty percentum of the qualified electors of such county, residents within the limits of the territory proposed to be annexed . . . [praying] that an election shall be called and held within the limits of such territory for the purpose of submitting . . . the question of such annexation under the provisions of this act."

            The language of § 1, chapter 245, Laws of 1907, as amended by § 1, chapter 110, Laws of 1937, authorizing annexation in the manner thereinafter provided, is,in substance, similar to § 1 of the 1945 act, above quoted.  Our examination of the 1907 act, as amended, fails to reveal any language whatever which would tend to indicate that the legislature intended to detract from the broad power granted in § 1 by limiting the annexation of territory to a contiguous city or town within the same county.

            Since, under the provisions of chapter 345, Laws of 1955, it is now possible to incorporate any unincorporated area presently lying in two or more counties, and since we have hereinabove concluded that territory in one county may be annexed to a municipal corporation, contiguous thereto, but lying in another county, under the provisions of chapter 128, Laws of 1945, we are unable to find any rational distinction which would preclude similar annexation by the election method under the provisions of the 1907 act, as amended.

            In conclusion, we note that the legislature, in the exercise of its plenary power over municipal corporations has broadly expressed the authority for annexation of contiguous territory by and to cities and towns.  Nowhere can we find within these statutes language even tending to indicate a legislative intent that annexation of territory be limited to territory within the county in which the municipal corporation is located.  In fact, such  [[Orig. Op. Page 5]] construction, under the guise of interpreting otherwise plain and unambiguous statutes, would tend to seriously impair the broad delegation of authority to annex expressly granted by the legislature.  Hence, we conclude that unincorporated territory lying in King county and contiguous to the city of Tacoma may be annexed to the latter either under the provisions of chapter 128, Laws of 1945, or pursuant to the provisions of chapter 245, Laws of 1907, as amended.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT J. HALL
Assistant Attorney General