Letter Opinion 1971 No. 100

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                                                                 August 26, 1971
 
 
 
Honorable Christopher T. Bayley
Prosecuting Attorney
King County Court House
Seattle, Washington 98104                                                     Cite as:  AGLO 1971 No. 100 (not official)
 
 
Dear Sir:
 
            This is written in further response to your letter of August 17, 1971, requesting an opinion of this office as to whether a county ordinance is binding within the confines of an incorporated city located within such county.
 
                                                                     ANALYSIS
 
            The general question of whether a county, in the exercise of its constitutionally granted police power,1/ could enact a regulatory ordinance having application within incorporated areas as well as in unincorporated territory, was considered at some length by this office in an opinion dated May 28, 1941, to the Thurston county prosecuting attorney, copy enclosed.  In that opinion we answered this general question in the negative, saying:
 
            "Under an identical constitutional provision the courts of California have twice denied the jurisdiction of the county within the corporate limits of a city located in the county.
 
            "In exparte Roach, 104 Cal. 277, 37 Pac. 1044, the court said:
 
             [[Orig. Op. Page 2]]
            "'* * * The constitution recognizes the division of the state into counties, and has authorized the legislature to establish for them a uniform system of government; but it has also authorized the creation of other municipalities within the boundaries of the several counties, and has given to such municipalities the same power of legislation upon these enumerated subjects as is conferred upon the counties themselves; and the power thus conferred by the constitution is to be construed, if possible, in such a way as to give full effect to its exercise by each of the designated bodies.  It is no more necessary that there be a conflict between the power thus to be exercised by the county and the city than if the authority of each had been derived through an act of the legislature.  It is not to be supposed that it was the intention of the people, through their constitution, to authorize a county to exercise the same power within the territory of the city as the city itself could exercise, or to confer upon the county the right to interfere with or impair the effect of similar legislation by the city itself.  Mr. Dillon says (section 184):  "There cannot be at the same time within the same territory two distinct municipal corporations exercising the same powers, jurisdictions, and privileges."  Full effect can be given to the section by holding that each has been given the exclusive right of legislation within its own particular boundaries.  By the organization of a city within the boundaries of a county, the territory thus organized is withdrawn from the legislative control of the county upon the designated subjects, and is placed under the legislative control of its own council; and the principle of local government which pervades the entire instrument is convincing of the intention to withdraw the city from the control of the county, and to deprive the county of any power to annul or supersede the regulations of the city upon the subjects which have been confined to its control.'
 
            "In ex parte Knight, 55 Cal.App. 511, 203 Pac. 777, the court said:
 
             [[Orig. Op. Page 3]]
            "'The county, in brief, has no legal right to legislate for a municipality located within its limits upon any subject which is within the scope of the powers granted to the municipality, and particularly upon any matters involving the police power of the state.'
 
            "43 Corpus Juris, Section 184, (page 186), states the rule thus:
 
            "'It is a general principle of municipal law that the inhabitants of the territory constitute the municipal corporation; and it is inconsistent with that principle to give to a county any municipal jurisdiction over the territory of such corporation, or any municipal power of interference which may violate the rule of local selfgovernment or in any way create antagonism in the administration of municipal law.  A county has no legal right to legislate for a municipal corporation located within its limits upon any subject which is within the scope of the powers granted the corporation, and particularly upon any matters involving the police power of the state.  When a municipal corporation is organized within the limits of a county, then so much of the territory of such county as is comprehended within the municipal limits of such corporation is, so far as local government is concerned, withdrawn from the county, and any ordinance or regulation passed by the county has no binding force upon the municipality as to any matters or subjects as to which the municipality is vested with the power to enact.'
 

            "Other cases to the same effect are:
 
            "Ex parte Pfirrman, 134 Cal. 143, 66 Pac. 205;
 
            "State v. Sage, 162 La. 630, 110 So. 884;
 
            "State v. Robbins, 59 Idaho 279, 81 P.2d 1078.
 
            "No authority to the contrary has been discovered."
 
             [[Orig. Op. Page 4]]
            This 1941 opinion was reviewed at some length by this office barely three years ago, resulting in an affirmance pursuant to our letter dated May 13, 1968, to then State Representative George P. Sheridan, copy enclosed.  Based upon these two previous considerations of this matter by this office, our direct answer to your present question is (as before) that a county ordinance enacted pursuant to Article XI, § 11 of our state constitution, supra, is applicable only within those portions of the county which are not occupied by incorporated cities of towns.2/
 
             We trust that the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Philip H. Austin
Deputy Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/See, Article XI, § 11 of the Washington constitution, which provides:
 
            "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."
 
2/In thus answering your question we take note of the fact that King county is currently operating under a "home rule" charter for its own government in accordance with the provisions of Article XI, § 4 (Amendment 21) of our state constitution.  However, we do not regard this fact as in any manner altering the applicability of our two previous opinions to the question you have posed, for it is to be understood that even in the case of a county which is operating under its own charter, such county remains ". . . subject to the constitution and laws of this state, . . ."  Moreover, although certain other sections of Article XI are expressly declared by Amendment 21 to be inapplicable to those counties which have adopted charters under the provisions of this constitutional amendment, nothing contained within Amendment 21 purports to abrogate or in any other manner affect the applicability of Article XI, § 11, supra, to such counties.