FIREARMS ‑- COUNTY COMMISSIONERS ‑- POWER TO REGULATE

FIREARMS ‑- COUNTY COMMISSIONERS ‑- POWER TO REGULATE.

County commissioners may make ordinance regulating possession and use of firearms by minors, not in conflict with RCW 9.41.240.

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                                                                    July 13, 1954

Honorable Tom A. Durham
Prosecuting Attorney
Whatcom County
Court House, 311 Grand Avenue
Bellingham, Washington                                                                                                Cite as:  AGO 53-55 No. 283

Dear Sir:

            By letter as previously acknowledged, you have requested the opinion of this office on the power of the county commissioners to pass an ordinance which you describe as follows:

            "* * *  The words of the ordinance would be in the words of RCW 9.41.240, Session Laws of 1909, Chapter 249, Section 308, except it would raise the age limit from fourteen to sixteen years.

            "The proposed ordinance would further provide that all minors under the age of sixteen, in order to possess any firearms on any public or private property, must first obtain a certificate or similar evidence of having proper instruction in the handling of fire arms [[ firearms]]from qualified instructors on a regularly constituted rifle range or gun club, and further that any such minor must have a permit from a law enforcement agency."

            In our opinion, the answer to your question is "Yes."

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Article XI, § 11, of the Constitution provides that:

            "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."

            RCW 36.32.120 (7) provides that the county commissioners may:

            "(7) Make and enforce, by appropriate resolutions or ordinances, all such police and sanitary regulations as are not in conflict with state law, and provide that any violation of such regulations, ordinances, or resolutions shall constitute a misdemeanor:  * * *"

            It is of course true that counties have no powers other than those expressly conferred upon them or those necessarily implied from powers expressly conferred.  State ex rel. King County v. Superior Court, 33 Wn. (2d) 76, and cases cited.  It may be stated without citation of authority that this is also true of municipal corporations.  But the foregoing provisions of the Constitution and statute are express grants of power.  The constitutional provision applies equally to cities and counties, by its terms.

            The proposed ordinance seems plainly to be an exercise of the police power, calculated to promote public safety.  The question then is whether or not the existence of RCW 9.41.240 prevents supplementary action by the county.

            The first possibility is that the state has preempted the field by virtue of the cited statute.  We think not.  A good illustration of such preemption is afforded by liquor legislation.  InSeattle v. Hewetson, 95 Wash. 612, and State v. Larkin, 130 Wash. 531, it was held that state liquor laws did not prevent municipal ordinances proscribing the same acts which were made illegal by statute, so long as there was no conflict between ordinance and statute.  RCW 66.08.120, enacted subsequently, clearly prohibits county or municipal regulation in that area.  But RCW 9.41.240 discloses no intent to cut off local regulation, either express or by way of legislative history.

             [[Orig. Op. Page 3]]

            The second possibility, also partaking of the conflict problem, is that the ordinance might be in some way inconsistent with the statute.  While it goes farther than the statute, we can find no conflict.  In this connection, see the following cases:  State v. Hagimori, 57 Wash. 623; Seattle v. Goldsmith, 73 Wash. 54; In re Ferguson, 80 Wash. 102; Hiscock v. Phinney, 81 Wash. 117; Detamore v. Hindley, 83 Wash. 322; Allen v. Bellingham, 95 Wash. 12; Brennan v. Seattle, 151 Wash. 665.

            Any exercise of the police power must be reasonable, and not arbitrary.  That question, however, in the first instance is for the determination of the county commissioners, and perhaps subsequently upon challenge for the courts.

            From what has been said, we conclude that the county commissioners have power to make and enforce the ordinance described.  We hope the foregoing analysis will prove to be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General

A. J. HUTTON, JR.
Assistant Attorney General