CITIES AND TOWNS ‑- SEWER SYSTEMS ‑- POWER OF COUNCIL TO AUTHORIZE BY ORDINANCE WITHOUT RATIFICATION BY VOTERS WHEN NOT FINANCED BY GENERAL OBLIGATION BONDS

CITIES AND TOWNS ‑- SEWER SYSTEMS ‑- POWER OF COUNCIL TO AUTHORIZE BY ORDINANCE WITHOUT RATIFICATION BY VOTERS WHEN NOT FINANCED BY GENERAL OBLIGATION BONDS

A fourth class town may by ordinance provide for either a partial or complete sewage system without submitting such proposition to the voters provided that the system can be financed without incurring a general indebtedness of the town.

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                                                                 August 26, 1953

Honorable John C. Merkel
Prosecuting Attorney
Kitsap County
307 Dietz Building
Bremerton, Washington                                                                                                              Cite as:  AGO 53-55 No. 122

Dear Sir:

            We have your letter of July 22, 1953, in which you request our opinion on the following question:

            "May a Fourth Class Town establish either a partial or complete sewage system without

            "(1) Either a vote of the electorate adopting a comprehensive scheme or plan for a system of sewers, or

            "(2) An order by the State Department of Health directing the town council to establish such a sewage system."

            It is our conclusion that your question may be answered in the affirmative provided that the cost of acquisition, construction, maintenance or operation of such public utility can be provided for without incurring a general indebtedness of the town.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            RCW 35.67.020 as derived from chapter 193, Laws of 1941, authorizes cities and towns to

            "* * * construct, condemn and purchase, acquire, add to, maintain, conduct, and operate systems of sewerage and systems and plants for refuse collection and disposal together with additions, extensions, and betterments thereto, within and without its limits, with full jurisdiction and authority to manage, regulate, and control them and to fix, alter, regulate, and control the rates and charges for the use thereof."

            RCW 35.67.030 provides as follows:

            "If the city or town council deems it advisable that the city or town acquire or construct any public utility mentioned in RCW 35.67.020 or make any additions and betterments thereto, or extensions thereof, it shall provide therefor by ordinance.  The ordinance shall specify and adopt the system or plan proposed and declare the estimated cost thereof as nearly as practicable."

            RCW 35.67.040 provides:

            "The ordinance shall be submitted for ratification or rejection to the voters of the city or town at a general or special election, except in the following cases where no submission shall be necessary:

            "(1) If the adoption of a system of sewerage or system for collection and disposal of refuse, and the construction and operation thereof has been required and ordered by the state board of health; or

            "(2) If no general indebtedness is to be incurred by the city or town in acquiring, construction, maintenance, or operation of such public utility, or if the work proposed is an addition or extension thereto or betterment thereof for which no general indebtedness is to be incurred by the city or town.

             [[Orig. Op. Page 3]]

            "If a general indebtedness is to be incurred, the amount of the indebtedness and the terms thereof shall be included in the proposition submitted to the voters."

            Thus, it is evident that the city council has authority to provide for the construction of, or addition to, a municipal sewage system by ordinance.  This ordinance need not be submitted to the voters for ratification or rejection if the acquisition, construction, maintenance and operation of such facilities can be financed without incurring the general indebtedness of the town.  If it is feasible to finance the improvement through the medium of revenue bonds the proposal need not be submitted to the voters.  RCW 35.67.120,et seq. provides the authority for and limitations upon the establishment of a revenue bond fund for issuance of such bonds.  In Morse v. Wise, 37 Wn. (2d) 806, chapter 193, Laws of 1941, was tested.  The court held that section 9, Article VII of the Washington Constitution, which authorizes the legislature to vest the corporate authority in cities and towns with power to make its local improvements by special assessments, does not provide an exclusive method of defraying the cost of such improvements.  The ordinances of Chelan, a fourth class town, authorizing the construction of additions to the existing sewer system and to make a service charge to all whose property is served by the entire system, were held to comply with the 1941 act and to be valid.  It is true that these ordinances were enacted pursuant to RCW 35.67.320 which permits cities to combine their water and sewer systems, but this section is practically identical to RCW 35.67.040 (2) except for the fact that it requires a finding by the city council that the public health is being endangered by the inadequacy of the present system.  Since the basis for the several statutes pertaining to the authority of city councils to provide for such facilities is derived from the exercise of the police power to protect the health of the city's inhabitants (Morse v. Wise, supra), it would appear to be desirable to set out in the ordinance authorizing the improvements, the necessity therefor.

            We are aware that chapter 80.40 RCW provides additional statutory authority and procedure for a city or town to provide for construction of or additions to a municipal sewerage system.  RCW 80.40.070 sets out the procedure for authorizing the construction of or additions to a number of public utilities ranging from sewerage systems to public markets and cold storage plants.  This section provides that no submission to the voters shall be necessary:

            "When the work proposed is * * * an addition, betterment, or extension of an existing system or plant of any other public utility for which no general indebtedness is to be incurred by the city or town;"

             [[Orig. Op. Page 4]]

            But if the proposal is for the construction of an entire sewerage system, even though no general indebtedness is to be incurred, ratification by the voters appears necessary if the city or town is proceeding under this chapter, unless provision was made in the city charter for the acquisition, opening, or operating of such utility by means of an ordinance or when, in the judgment of the corporate authority the public health is endangered.  RCW 80.40.070,supra, is derived from section 2, chapter 150, Laws of 1909, as last amended by chapter 147, Laws of 1941.  RCW 35.67.040 is derived from chapter 193, Laws of 1941.  Chapter 80.40 RCW deals with the general subject of municipal utilities.  Chapter 35.67 RCW is concerned with the special subject of municipal sewerage systems.  It is a well recognized rule of statutory construction that special concurrent laws obtain against a conflicting general rule.  Hartig v. Seattle, 53 Wash. 432.

            We conclude that a city council may elect whether to proceed under chapter 80.40 RCW or chapter 35.67 RCW.  In cases involving the construction of an entire sewerage system this election will be determinative of the procedural question of the necessity of submitting the proposition to vote for ratification.

            It is our further conclusion that a fourth class town, may by ordinance provide for a partial sewerage system without submitting such proposition to the voters provided that the system can be financed without incurring a general indebtedness of the town.

Very truly yours,

DON EASTVOLD
Attorney General

ANDY ENGEBRETSEN
Assistant Attorney General