FIREWORKS ‑- STATE LAW HAVING PRECEDENT OVER COUNTY ORDINANCES

FIREWORKS ‑- STATE LAW HAVING PRECEDENT OVER COUNTY ORDINANCES.

City and county ordinances governing fireworks are not superseded by state regulation as found in chapter 174, Laws of 1951, unless there is a confliction.

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                                                                   April 10, 1951

Honorable George W. Kupka
House of Representatives
District 27
801 South G Street
Tacoma, Washington                                                                                                Cite as:  AGO 51-53 No. 9

Dear Sir:

            We acknowledge receipt of your inquiry regarding the effect of Substitute Senate Bill No. 40 (chapter 174, Laws of 1951), upon existing city or county ordinances.

            The question may be summarized as follows:

            Does Substitute Senate Bill No. 40 (chapter 174, Laws of 1951), which regulates the manufacture, sale, use or discharge of fireworks, supersede city or county ordinances which prohibit the manufacture, sale, use or discharge of fireworks?

            Our conclusion may be summarized as follows:

            Substitute Senate Bill No. 40 (chapter 174, Laws of 1951), which regulates the manufacture, sale, use or discharge of fireworks, does not supersede city or county ordinances which prohibit the manufacture, sale, use or discharge of fireworks.

                                                                     ANALYSIS

            Section 10 of Substitute Senate Bill No. 40 (chapter 174, Laws of 1951), reads as follows:

             [[Orig. Op. Page 2]]

            "Nothing in this act nor in any permit issued hereunder shall authorize the manufacture, sale, use or discharge of fireworks in any city or county in which such manufacture, sale, use or discharge is otherwise prohibited by law or municipal ordinance; nor shall any city or county authorize the sale or use of any fireworks prohibited by the provisions of this act."

            For the sake of clarity, this opinion is partitioned into three divisions.

            First.  The wording of section 10 clearly indicates that the legislature did not intend city ordinances prohibiting fireworks to be in any wise affected by this act.  Note that "Nothing in this act * * * shall authorize * * * fireworks in any city * * * in which such * * * [fireworks are] otherwise prohibited by * * * municipal ordinance; * * *"

            Second.  It is our opinion that the legislature did not intend county ordinances prohibiting fireworks to be superseded by this act, but the same does not clearly appear. It should be noted that the phrase "otherwise prohibited by law or municipal ordinance" is used.  Unless it can be said that a county ordinance is a "law" or a "municipal ordinance," the act has the effect of superseding county ordinances prohibiting fireworks.

            Strictly speaking, a "law" is a legislative enactment approved by the executive, or passed over his veto, or an initiative or referendum enacted by the electorate.  State ex rel. Todd v. Yelle, 7 Wn. (2d) 449, 110 P. (2d) 162.  On the other hand, the word "law" has often been used more loosely.  In the case ofInman v. Sandvig, 170 Wash. 112, 15 P. (2d) 696, our court said:

            "The word 'law,' as used in * * * [section 3, Article I, and section 12 of Article I, Washington State Constitution] includes a rule made by any administrative authority, as well as a law made by direct legislative authority.  * * *"

            InState v. Brent, 30 Wn. (2d) 286, 191 P. (2d) 682, a verdict "against law" is said to be one that is contrary to the court's instructions.

            We have been able to locate only one state law on fireworks that is not repealed by Substitute Senate Bill No. 40 (chapter 174, Laws of 1951).  Chapter 89, Laws of 1931 (Rem. Rev. Stat. 5795-2), reads in part as follows:

             [[Orig. Op. Page 3]]

            "It shall be unlawful during the closed season, for any person to throw away any * * * firecrackers * * * in any forest brush, range, or grain areas in this state."

            If the legislature had intended the word "law" as used in section 10 of the act to refer to only chapter 89, p. 262, Laws of 1931 (Rem. Rev. Stat. 5795-2), it would, in our opinion, have so stated its intent.  Instead the legislature used the word "county" and the word "law," thereby showing its intent the former should qualify the latter.  Any other interpretation would render part of section 10 superfluous, and destroy much of its meaning.

            We conclude that the term "law" as used in section 10 means a county ordinance for another reason.  Section 11, Article XI of the State Constitution, reads in part as follows:

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

            In the case ofDetamore v. Hindley, 83 Wash. 322, 145 Pac. 462, the court held this constitutional provision to be "a direct delegation of the police power as ample within its limits as that possessed by the legislature itself."  See alsoSeattle v. Proctor, 183 Wash. 293, 48 P. (2d) 238, and the cases cited therein.  It follows that if a legislative enactment is a "law," then a county ordinance is a "law," so long as it does not conflict with the general laws, and provided the county regulation was duly passed.  See chapter 61, Laws of 1947 (4056 Rem. Supp. 1947).

            We are of the further opinion that the words "municipal ordinance" as used in section 10 encompass a county ordinance.  It would unduly lengthen this opinion to go into the definition and exact meaning of "municipal," but we note that a county has often been referred to as a "municipal corporation" in this state.  SeePierce County v. Thompson, 82 Wash. 440, 144 Pac. 704, and the cases cited therein.  We also note that section 6, Article VIII, section 2, Article VII, and section 12 of Article XI of the State Constitution speak of counties, cities, towns, or other municipal corporations, thereby indirectly recognizing that a county is a municipal corporation.

            Third.  The latter part of section 10, Substitute Senate Bill No. 40, says:

             [[Orig. Op. Page 4]]

            "* * * nor shall any city or county authorize the sale or use of any fireworks prohibited by the provisions of this act."

            This patently means that cities and counties cannot authorize the manufacture, sale, use or discharge of fireworks beyond that allowed by the act itself.

Very truly yours,

SMITH TROY
Attorney General

ROBERT A. COMFORT
Assistant Attorney General