DIVISION OF COUNTY

DIVISION OF COUNTY

An existing county may be divided with legislative sanction and a portion of its territory awarded to another county.

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                                                               September 8, 1952

Honorable Gordon Sandison
State Representative
Box 933
Port Angeles, Washington                                                                                                              Cite as:  AGO 51-53 No. 398

Dear Sir:

            Receipt is acknowledged of your letter of September 2, 1952, in which you request our opinion as to whether it would be possible to split Jefferson County and transfer a portion thereof to Clallam County and a portion to Grays Harbor County, and requesting the method to be used.

            It is our conclusion that it is possible, with legislative sanction, to make a division of a county and transfer portions thereof to another county.  The method to be followed should be established by the legislature subject to constitutional limitations.

                                                                     ANALYSIS

            The boundaries of Jefferson County are established by statute.  RCW 36.04.160; RRS § 3940.  Likewise, the boundaries of Grays Harbor County and Clallam County are fixed by statute.  RCW 36.04.140; RRS § 3927 and 3938; RCW 36.04.050; RRS § 3929.  Legislative authority would therefore be required to make any change in the boundaries of these counties.  Section 3, Article XI of the State Constitution provides:

            "No new counties shall be established which shall reduce any county to a population less than four thousand, nor shall a new county be formed containing  [[Orig. Op. Page 2]] a less population than two thousand.  There shall be no territory stricken from any county unless a majority of the voters living in such territory shall petition therefor, and then only under such other conditions as may be prescribed by a general law applicable to the whole state.  Every county which shall be enlarged or created from territory taken from any other county or counties shall be liable for a just proportion of the existing debts and liabilities of the county or counties from which such territory shall be taken: Provided, that in such accounting neither county shall be charged with any debt or liability then existing, incurred in the purchase of any county property or in the purchase or construction of any county buildings then in use or under construction which shall fall within and be retained by the county:  Provided, further, that this shall not be construed to affect the rights of creditors."

            It will be noted that the constitution provides that no territory shall be striken from any county unless a majority of the voters living in the territory shall petition therefor, and then only under such conditions as may be prescribed by a general law applicable to the whole state.  Our legislature has prescribed the procedure for dividing counties.  It will be found in chapter 36.09 RCW (Code of 1881, §§ 2657, 2658 and 2660; § 1, chapter 79, Laws of 1909).  By this procedure the auditors of the counties involved meet and attempt to settle the liabilities as between them.  In the settlement neither county shall be charged with any debt or liability then existing incurred in the construction of roads or bridges, the purchase of any county property, the purchase or construction of any county buildings, then in use or under construction which will fall within or be retained by the other county unless the rights of creditors are involved.  Any county property or building shall be the property of the county wherein it is situated.  If the auditors are unable to agree the matter is submitted to the superior court.

            Our Supreme Court has held, however, that a special act of the legislature passed for the purpose of creating a new county and prescribing the method of settling with the county from which territory was taken would supersede the prior general statute as to the disposition of assets.  The court said that the  [[Orig. Op. Page 3]] division of counties and the distribution of property and assets is solely a legislative function.  Douglas County v. Grant County, 72 Wash. 324, 130 Pac. 366.  It should be noted that the general statute with regard to the division of counties speaks in terms of the creation of a new county and its language does not specifically include a situation in which territory might be transferred to an existing county.  However, there appears to be no reason why the legislation which would authorize a change of the boundaries of existing counties could not also provide for extending existing statutes to a situation where territory is transferred to an existing county.

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General