HOSPITALS, VALIDITY OF AN ELECTION FOR THE FORMATION OF A JOINT PUBLIC HOSPITAL DISTRICT.

HOSPITALS, VALIDITY OF AN ELECTION FOR THE FORMATION OF A JOINT PUBLIC HOSPITAL DISTRICT.

 Hospitals, Districts, Joint Public‑-Election for Formation, Validity of.

 1. Election for formation, date when held.2. Notices of election, publication of.3. Notice signed by auditor of each county involved.4. Polling places, location of.5. Revocation of final order defining area to be included by county commissioners is invalid.

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                                                                    May 8, 1956 

Honorable Paul A. Klasen, Jr.
Prosecuting Attorney
Grant County
Ephrata, Washington                                                                                                              Cite as:  AGO 55-57 No. 266

 Dear Sir:

             You have requested our opinion upon a number of questions concerning the validity of an election recently held to form a joint public hospital district encompassing defined portions of Grant county and Douglas county lying adjacent to one another.  The facts and circumstances surrounding the procedure antecedent to the election and the conduct of the election itself will be set forth below.  Based on these facts, your questions are as follows:

             "1. Was it proper to hold the election for the formation of this joint district on the 13th of March according to Chapter 135, Section 1, Laws of 1955?

             "2. What is the effect of the action taken by the Douglas County Commissioners after having held the hearings on the proposed district, and the hearings being closed, then subsequently directing the County Auditor not to take part in the elections?

              [[Orig. Op. Page 2]]

            "3. Has a valid election been held for the formation of the joint district?

             "4. Has a valid election been held for the formation of a district comprising Grant County alone?

             "5. If the answer to either of the foregoing questions is in the affirmative, what is the next legal step to take in the formation of this hospital district?"

             We have reached the conclusion that under the circumstances to be described below that there was a valid election for a joint public hospital district comprising portions of Grant and Douglas counties.  Your other questions are answered in the course of our analysis below.

                                                                      ANALYSIS

             Because of the crucial role played by the facts and circumstances surrounding the procedure to form a public hospital district, we have attempted to ascertain these facts as best we may in reaching conclusions relative to the questions presented.  Our conclusions are, of course, confined to questions reasonably arising from the facts as we have ascertained them to be.

             Your questions arise from the following factual situation:

             Petitions were presented to the boards of county commissioners of Grant and Douglas counties for the formation of a proposed public hospital district comprising a fairly large portion of Grant county and a small, sparsely settled portion of Douglas county consisting of all or a part of three precincts adjoining Grant county.  The petitions were certified as sufficient by the auditors of each county.

             The county commissioners of each county fixed a date for hearings on the petitions and notice of these hearings was published in accordance with applicable statutory law.

             The hearings were duly held in each county, and as a result thereof, certain revisions in the boundaries of the portion of the proposed district lying in Douglas county were made by the Douglas county commissioners in that certain parts of this area were excluded.

             The hearings in each county were closed, a determination of the boundaries was reached, and a resolution by the board of commissioners in each county was passed directing the respective county auditors to  [[Orig. Op. Page 3]] proceed with a special election to be held on March 13, 1956, for the purpose of submitting the question of the formation of the proposed joint public hospital district to a vote of the people concerned.

             The order, dated February 6, 1956, of the board of county commissioners of Douglas county reads in part as follows:

             "And the said Board of County Commissioners does hereby find that the proposed joint Hospital District Number One will be conducive to the Public welfare and convenience of the citizens of the District, and will be of special benefit to the people included within the boundaries of the proposed Joint Hospital District so established by this Board of County Commissioners as hereinabove described, The said Board of County Commissioners hereby orders that the question of the formation of said Joint Hospital District embracing said land herein described shall be submitted to the qualified voters of said proposed Hospital District at the Town and School Election, March 13th, 1956, in accordance with March Elections.

             "The said Board of County Commissioners does hereby order that the name of the said proposed Joint Hospital District shall be Joint Hospital District Number One‑with Grant County."

             Arrangements pursuant to the order of their respective boards of county commissioners were thereafter made between the auditors of Grant and Douglas counties for holding the special election on March 13, 1956.  It was agreed that notices of the election, signed jointly by each auditor, would be published during the prescribed statutory period in the grant County-Soap LakeReporter, the Coulee City News-Standard, and the Waterville Empire Press.

             Inasmuch as regular school district elections were to be held on March 13, 1956, it was agreed between the county auditors that the polling places for the hospital district election should be the same as those established for the school district elections.  The precincts of Douglas county included by the order of the Douglas county commissioners in the proposed hospital district were apparently also part of joint Grant-Douglas county school districts.  The polling places established for elections in these joint school districts were all located in Grant county.  Therefore, the voters of Douglas county entitled to  [[Orig. Op. Page 4]] vote in the hospital election were to vote at the polling places established in Grant county at the same time that they voted in the regular joint school district elections.

             In early March, 1956, a question arose among the Douglas county commissioners as to whether the hospital election could legally be held on March 13, 1956.  Oral advice was obtained from appropriate state officials to the effect that a special election for the formation of a hospital district should, in accordance with applicable statutory provisions, be held on the date of a general election for state and county officers, unless the petition for the hospital district requested that a special election be called.

             Thereafter, on March 5, 1956, the board of county commissioners of Douglas county by formal order rescinded and revoked its prior order of February 6, 1956, and directed the Douglas county auditor not to publish any notice of the election for the proposed public hospital district in so far as Douglas county was concerned.  This action apparently was grounded on the commissioners' determination that the petition had failed to request that a special election be called and for this reason that a hospital election held on March 13, 1956, would be invalid.

             The auditor of Grant county, however, was not advised by either the auditor or the county commissioners of Douglas county of the order of the board rescinding its prior action ordering the election be held on March 13, 1956.  The Grant county auditor, acting pursuant to his agreement with the Douglas county auditor said agreement being based on the February 6th order of the Douglas county commissioners as well as the order of the Grant county commissioners, caused to be published in the Grant County Soap LakeReporter and the Coulee City News-Standard on March 9, 1956, a notice of the hospital election bearing the printed signatures of both the Grant and Douglas county auditors.  However, the Douglas county auditor, relying upon the Douglas county commissioners' order of rescission dated March 5, 1956, did not publish such a notice in the WatervilleEmpire Press.  Thus, the notice of the hospital election appeared in two newspapers published in Grant county but did not appear in any newspaper actually printed in Douglas county.

             Notwithstanding all these complications, the public hospital district election was actually held on March 13, 1956.  As it appeared on the ballot, the proposition submitted to the voters concerned in each county was whether or not a joint district, as defined in the notice of election, should be formed.  Douglas county voters entitled to vote in  [[Orig. Op. Page 5]] the hospital election voted at polling places in Grant county as heretofore explained.  The Douglas county votes were kept separate and apart.  The election returns appear to indicate that the proposition to form the joint hospital district was successfully carried at the polls.

             RCW 70.44.035 (1955 Supp.) provides as follows:

            "Any petition for the formation of a public hospital district may describe an area lying in more than one county, the boundaries of which shall follow the then existing precinct boundaries and not divide a voting precinct; and if a petition is filed with the county auditor of the respective counties in which a portion of the proposed district is located, containing not less than ten percent of the voters of that area of each county of the proposed district who voted at the last general election, certified by the said respective auditors in like manner as for a county-wide district, the board of county commissioners of each of the counties in which a portion of the proposed district is located shall fix a date for a hearing on the petition, and shall publish the petition, without the signatures thereto appended, for two weeks prior to the hearing, together with a notice stating the time of the meeting when the petition will be heard.  The publication required by this chapter shall be in a newspaper published in the portion of each county lying within the proposed district, or if there be no such newspaper published in any such portion of a county, then in one published in the county wherein such portion of said district is situated, and of general circulation in the county.  The hearing before the respective county commissioners may be adjourned from time to time not exceeding four weeks in all.  If upon the final hearing the respective boards of county commissioners find that any land has been unjustly or improperly included within the proposed  [[Orig. Op. Page 6]] district they may change and fix the boundary lines of the portion of said district located within their respective counties in such manner as they deem reasonable and just and conducive to the welfare and convenience, and enter an order establishing and defining the boundary lines of the proposed district located within their respective counties:  Provided, That no lands shall be included within the boundaries so fixed lying outside the boundaries described in the petition, except upon the written request of the owners of the land to be so included.  Thereafter, the same procedure shall be followed as prescribed for the formation of a district including an entire county, except that the petition and election shall be confined solely to the portions of each county lying within the proposed district."

             The petitions presented to the county commissioners of Grant and Douglas counties, the notice of hearings, the hearings themselves, and the order of the Grant county commissioners as well as the order of the Douglas county commissioners, dated February 6, 1956, fixing the boundaries of the proposed district appear to conform with the provisions of RCW 70.44.035 (1955 Supp.).

             It will be noted that RCW 70.44.035 (1955 Supp.) provides that the procedure to be employed after the board of county commissioners has entered its order establishing the district boundaries "* * * shall be * * * as prescribed for the formation of a district including an entire county, * * *."  Section 1, chapter 123, Laws of 1955 [RCW 70.44.020 (1955 Supp.)] concerns the formation of such a district.  It provides in part:

            "* * * When the petition is certified as sufficient, the auditor shall forthwith transmit it, together with his certificate of sufficiency attached thereto, to the commissioners, who shall immediately transmit the proposition to the supervisor of elections or other election officer of the county, and he shall submit the proposition to the voters at the next general election or if such petition so requests, he shall call a special election on such proposition not less than thirty nor more than ninety days from the date of said certificate.  The notice of the election shall state the boundaries of the proposed district and the  [[Orig. Op. Page 7]] object of the election, and shall in other respects conform to the requirements of law governing the time and manner of holding elections.  * * *"

             We interpret this provision to mean that a public hospital election will be held at the same time the general election for state and county officers is held, unless the petition requests that a special election be called.  Although such an election would be regarded as a "special" election whether it occurs on the date of a general election for state and county officers or at some other time, nevertheless we believe that within the contemplation of RCW 70.44.020 (1955 Supp.), a petition requesting that an election be called would be a sufficient showing of intent on the part of the petitioners to request that the election be held at a time other than the time regularly set for the election of state and county officers to justify the county commissioners in calling the election "not less than thirty nor more than ninety days from the date of said certificate."

             An examination of the petitions in question discloses that the following language was employed:

            "The petitioners further petition * * * that a public election be called within said territory for said purpose, * * *"

             This language is not as clear as one might desire.  However, as a matter of interpretation, we are convinced that the petitions may, and should, be regarded as a request that a special election to form the joint public hospital district be held "not less than thirty nor more than ninety days" from the date on which the petitions were certified as sufficient, as provided by RCW 70.44.020 (1955 Supp.).  In this connection, we point out that the petition was so interpreted by the Grant county commissioners and by the Douglas county commissioners, at least in so far as the latter's order of February 6, 1956, was concerned.

             Thus we conclude that under the circumstances of this case the orders of the boards of county commissioners of each county calling for the hospital election to be held on March 13, 1956, were in compliance with chapter 135, Laws of 1955 [RCW 70.44.020 (1955 Supp.)], although we concede the question to be a very close one in view of the language employed in the petition.  Hence, with respect to the date on which this election was held, we regard the election as valid.

              [[Orig. Op. Page 8]]

            Turning now to the question of the requisite notice to be given of an election for the formation of a public hospital district, RCW 70.44.020 (1955 Supp.) indicates that such notice shall conform "to the requirements of law governing the time and manner of holding elections."  RCW 29.27.080 (1955 Supp.) provides:

             "Notice for any state, county, district, or municipal election, whether special or general, shall be given by at least one publication not more than ten nor less than three days prior to the election by the county auditor or the officer conducting the election as the case may be, in one or more newspapers of general circulation within the county.  * * * This shall be the only notice required for a state, county, district or municipal general or special election and shall supersede the provisions of any and all other statutes, whether general or special in nature, having different requirements for the giving of notice of any general or special elections."

             The required notice, therefore, need only be published once during the indicated time limit "in one or more newspapers of general circulation within the county."

             The hospital election notice was published jointly by the auditors of Grant and Douglas counties on March 9, 1956, in two newspapers:  the Grant County-Soap LakeReporter and the Coulee City News-Standard, which apparently enjoy a general circulation in the areas of both Grant and Douglas counties included within the proposed public hospital district.  The statute does not require that the newspaper employed for notice purposes be printed in a particular county.  Therefore, we believe that inasmuch as the notice was published in two newspapers of general circulation in the areas of the two counties concerned, the failure to publish the notice in the Waterville Empire Press (a Douglas county newspaper published in a place of considerable distance from the areas of Douglas county involved) did not have the effect of invalidating the election.

             Within the contemplation of RCW 70.44.020 (1955 Supp.) as it relates to RCW 70.44.035 (1955 Supp.), it appears to us that the auditor of each county concerned in the formation of a public hospital district must perform the ministerial act of publishing the required election notice.  In this respect, the authorization given to the Grant county auditor by the Douglas county auditor to publish the notice over the  [[Orig. Op. Page 9]] names of both auditors in the two newspapers mentioned seems to have been a substantial compliance on the part of the Douglas county auditor with the provisions of RCW 70.44.020 (1955 Supp.); and such action must also be regarded as having been taken pursuant to the February 6, 1956, order of the Douglas county commissioners.

             In support of our conclusion concerning the validity of the notice of the hospital district election, we refer to the opinion of our supreme court in Vickers v. Schultz, 195 Wash. 651, where the court said at page 657:

             "We have consistently held that, unless the statute which prescribes the form and manner of publishing election notices, expressly provides that non-compliance with the statute will render the election void, it is regarded as declaratory rather than mandatory.  The election will be held valid, even if there is a variance from the terms of the statute, if the election was a fair one; that is, if information concerning the election was communicated to the electors by means other than the official notices and if the electors generally participated in the election so that the election as held constituted a reliable expression of popular opinion."

             The facts seem to indicate that the Douglas county voters entitled to vote "generally participated in the election" held on March 13, 1956.

             Regarding the question of the propriety of establishing polling places located in Grant county for the use of Douglas county voters entitled to vote in the hospital election, we refer to RCW 29.48.005 which provides:

             "Polling places for the various voting precincts may be located outside the boundaries of the respective precincts, when the officers conducting the election shall deem it feasible:  Provided, That such polling places shall be located within a reasonable distance of their respective precincts.  The purpose of this section is to furnish adequate voting facilities at readily accessible and identifiable locations and nothing herein shall be construed as affecting the number, method of selection or duties of precinct election officers."

              [[Orig. Op. Page 10]]

            There is little doubt that the polling places, although all of them were located in Grant county, were established with the convenience of the Douglas county voters in mind in view of the joint school district elections being held at the same time.  We find no illegality in this phase of the problem.

             We now reach the question of the effect of the order of the Douglas county commissioners, dated March 5, 1956, rescinding and revoking its prior action of February 6, 1956.  The prior order was entered after the hearings were closed and it reflected the result of those hearings in so far as certain parts of the area in Douglas county proposed by the petition to be included were by the order excluded.  The order of February 6, 1956, changing the boundaries and directing the Douglas county auditor to proceed with the election was clearly based on the following provision in RCW 70.44.035 (1955 Supp.):

             "* * * If upon the final hearing the respective boards of county commissioners find that any land has been unjustly or improperly included within the proposed district they may change and fix the boundary lines of the portion of said district located within their respective counties in such manner as they deem reasonable and just and conducive to the welfare and convenience, and enter an order establishing and defining the boundary lines of the proposed district located within their respective counties:  * * *"

             We have been unable to find any statutory provision authorizing a board of county commissioners to rescind or to revoke an order entered after the final hearing in pursuance of the terms of RCW 70.44.035 above quoted.  The March 5th order of revocation was entered without hearings being reopened, and, indeed, the prior order was apparently revoked upon the ground that the date of the election fixed therein was legally questionable rather than upon the ground that the Douglas county portion of the district had been "unjustly or improperly included."  In the absence of statutory authority for a revocation of an order duly entered after final hearing in pursuance of RCW 70.44.035 (1955 Supp.), and in view of the circumstances giving rise to the revocation; we think the March 5th order of the Douglas county commissioners revoking its prior action was unauthorized and without legal effect.

              [[Orig. Op. Page 11]]

            We conclude that the election held on March 13, 1956, for the formation of a joint hospital district in Grant and Douglas counties was legally valid.  It is, therefore, unnecessary to determine whether or not there was a valid election for the formation of a public hospital district comprising the area lying within Grant county alone.  In this connection, however, we point out that the only proposition submitted to the voters was the formation of a joint Grant-Douglas hospital district.  For this reason, it would be difficult to conclude that there could have been a valid election for a district in Grant county only.

             It appears to us that a valid election in favor of the public hospital district is the last step in the formation of such districts.

             In conclusion, we feel compelled once again to emphasize the crucial importance of the facts in analyzing legal questions of this kind.  We have tried to ascertain the facts as closely as practicable.  We have made no endeavor to explore every factual element involved.  Rather, our effort has been to reach conclusions with respect to the principal issues presented for our determination.  Our conclusions relative to the issues submitted for our determination are necessarily based upon the facts as they have been presented to us.  With this qualification in mind, we think the election forming the joint public hospital district may be regarded as legally valid.

             We hope the foregoing analysis may prove helpful to you.

 Very truly yours,
DON EASTVOLD
Attorney General 

J. CALVIN SIMPSON
Assistant Attorney General