HEALTH ‑- REGULATION, REQUIRING CONNECTION WITH EXISTING SEWER

HEALTH ‑- REGULATION, REQUIRING CONNECTION WITH EXISTING SEWER

1. It is not an unlawful delegation of legislative authority to allow an administrative body to pass upon a condition or state of things if proper standards to govern the Board are legislatively enunciated;

2. A municipal sewer system is accessible to a non-resident [[nonresident]]of a municipality if the municipality will, without the imposition of onerous conditions, allow him to connect his property to such sewer system.

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                                                                    July 29, 1955

Honorable George W. Sibbald
Prosecuting Attorney
Cowlitz County Court House
Kelso, Washington                                                                                                              Cite as:  AGO 55-57 No. 121

Attention:  !ttMr. Richard L. Norman
            Deputy Prosecuting Attorney

Dear Mr. Norman:

            In your recent letter, receipt of which has been previously acknowledged, you called our attention to subparagraph (f), section 10, Book V, Part I of the Rules and Regulations governing sanitation issued by the State Board of Health, and requested our opinion as to whether such portion of such Rules and Regulations is valid or whether it was issued under the authority of an invalid legislative act because of Article 2, Section 1 of the Washington Constitution.

                        CONCLUSION

            It is our conclusion that such portion of the Rules and Regulations is valid and that the underlying legislation is also valid because not in conflict  [[Orig. Op. Page 2]] with Article 2, Section 1 of the Washington Constitution.

                                                                     ANALYSIS

            Subparagraph (f) above‑referred to reads as follows:

            "(f) Connection With Sewer‑-No privy, cesspool, septic tank or similar receptacle for human excrement shall be constructed, maintained or used on premises where a sewer is at all accessible which is part of a sewerage system from which sewage is lawfully discharged into the waters of the state."

            It is, as we understand it, issued under the authority of the following quoted portion of RCW 43.20.050:

            "The Board may have special or standing orders or regulations for the prevention of the spread of contagious or infectious diseases, * * *"

            The Washington Constitution, Article 2, Section 1, vests the sole state legislative power in the Senate and House of Representatives.  We think it too clear to need any citation of authority that a blanket delegation of such legislative power comes within the inhibitions of such constitutional provisions.  It is equally clear, however, that the legislative body may delegate to administrative boards or officers the right to determine some fact or state of things upon which the operation of the law is made to depend, if the legislative body will clearly enunciate a standard by which such boards or officers must be governed.  See:Senior Citizens League v. Department of Social Security, 38 Wn. (2d) 142 (1951).

            It then becomes pertinent to inquire whether or not RCW 43.20.050 enunciates clearly such a standard.  If so, it is valid legislation.  If not, it is of course invalid.  Admittedly the above‑quoted portion of the statute is somewhat broad and general.  It seems to us, however, that it very clearly enunciates an easily ascertainable standard by which the Board of Health must be governed.

             [[Orig. Op. Page 3]]

            First, there must exist a condition which is conducive to the spread of contagious or infectious diseases; secondly, the order or regulation issued must require a method of combating the spread of such disease.  There can be no question that the above‑quoted subparagraph (f) deals with a condition that is conducive to the spread of contagious and infectious diseases.  There can equally be no question that the change of such condition, insofar as the condemned material is placed into a sewer line, materially lessens, at least, the danger of spread of infectious and contagious diseases.

            The alternative method by which the legislature could deal with this type of problem is by spelling out minutely in the legislation each infectious and contagious disease known at the time that the legislation was passed, and each method known at the time the legislation was passed that had proven effective to counteract the spread of each of such diseases.  We do not believe that it is necessary for the legislature to so do.  We think it sufficient if the legislature uses for the guidance of the boards and administrative officers general terms, the meaning of which are readily ascertainable, and in so doing they have clearly and cogently set out the standards required.  We think the decision of our own Supreme Court in the case of Senior Citizens League v. Department of Social Security, supra, in which it is said on page 156:

            "It is enough to say, for present purposes, that in our opinion, the words and terms referred to are not of doubtful and uncertain meaning, in the sense that such meaning may not be definitely and readily ascertained.  Most of them, in fact, are common words and terms having a generally accepted meaning.  * * *"

            sustains our opinion in this regard.

            We conclude that the above‑quoted subparagraph (f) is a valid regulation and that the legislation upon which it is based is not an unlawful delegation of legislative power under Article 2, Section 1 of the Washington Constitution.

             [[Orig. Op. Page 4]]

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

Very truly yours,

DON EASTVOLD
Attorney General

J. D. THOMAS, JR.
Assistant Attorney General