LIQUOR PROFITS ‑- APPLICATION OF STATE CENSUS BOARD FIGURES TO FORMULA FOR DISTRIBUTION.

LIQUOR PROFITS ‑- APPLICATION OF STATE CENSUS BOARD FIGURES TO FORMULA FOR DISTRIBUTION.

 State Census Board population estimates may not be used for the purpose of determining distribution of state liquor profits.

The last federal census or official county census, whichever is later, as affected by properly completed annexations and incorporations must be used to apply the formula.

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                                                                  March 30, 1956 

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 55-57 No. 236

 Attention:  !ttC. W. Yoakum, Chief Examiner
            Division of Departmental Audits

Dear Sir:

             You have requested our opinion on six questions, the answers to which effect the determination of population of incorporated and unincorporated areas within the state for the purpose of distribution of liquor profits to cities, towns and counties.  The specific questions are as follows:

             "1. Which, if any, of the sections of law referred to above have been repealed by implication, so that they may be disregarded by this office in arriving at rural and incorporated area populations, to be used as a basis for proportionate distribution of liquor profits to counties and to cities and towns of the state?  [The sections referred to are RCW 35.02.130, 35.03.050, 35.13.260, 43.66.100, 43.66.110, 43.66.120, RCW 43.62.020 and 43.62.030.]

             [[Orig. Op. Page 2]]

            "2. What, in the light of existing statutes and Attorney General's opinions is the source from which this office may expect to obtain certifications as to compliance with pertinent laws by the originating agencies involved, and the results thereof, with respect to incorporations, disincorporations and annexations?

             "3. Is an incorporation, disincorporation or annexation legally or officially completed, for state purposes and for the distribution of state funds, prior to its being filed with the Secretary of State, within thirty days subsequent to completion of all other legal requirements?

             "4. To what extent may this office apply census estimates published annually by the State Census Board, under chapter 43.62 RCW, which is stated to include alleged incorporations of new cities or towns or annexations to existing cities and towns?

             "5. Is the Census Board charged with the duty to see that incorporations and annexations have been lawfully completed, including filing with the Secretary of State, before inclusion of such classified populations in census estimates to be used for the distribution of state funds, on a segregated population basis?

            "6. If your answer to No. 5 is in the affirmative, should the Census Board report to this office in connection therewith?"

             The answers to questions 1, 2, 4, 5 and 6 will be found in the analysis following; the answer to question 3 is in the negative.

                                                                     ANALYSIS

             1. It is our opinion that none of the laws referred to in the inquiry have been repealed by implication.  The only enactment having reference to or bearing on the distribution of intoxicating liquor profits, since the statutes referred to in the request, is chapter 109, Laws of 1955.  Section 3 of the 1955 law amended RCW 43.66.100.  Section 3, chapter 109, Laws of 1955, provides in part as follows:

              [[Orig. Op. Page 3]]

            "The share coming to each eligible county shall be determined by a division among the eligible counties according to the relation which the population of the unincorporated area of such eligible county, as shown by the last federal or official county census, whichever is the later, bears to the population of the total combined unincorporated areas of all eligible counties, as shown by such census:  Provided, That no county in which the sale of liquor is forbidden in the unincorporated area thereof as the result of an election shall be entitled to share in such distribution.  'Unincorporated area' means all that portion of any county not included within the limits of incorporated cities and towns."

             A careful reading of this enactment, together with the section amended, clearly shows that the legislature did not intend the 1955 act to conflict with or repeal the statutes formerly used in establishing the formula for determining population as a basis for distribution of liquor profits.  This view is in accord with out opinion of April 6, 1955, AGO 55-57 No. 53, addressed to the Honorable Charles O. Carroll [[Prosecuting Attorney, King County]], a copy of which is enclosed; it is, moreover, in line with the tenor of the governor's veto message wherein §§ 4 and 5 of the act were vetoed.  The 1955 act merely adds "or official county census, whichever is the later."  It is our opinion that the state census board's determination of the population of cities and towns does not constitute an "official county census" for the simple reason that the official publication does not reflect the source of the population increase, nor is the state census board required by a directive so to do.

             Consequently, the population estimate of the census board does not present a true picture with respect to increase or diminution of population in unincorporated areas; therefore, it may not be relied upon by your office.

             In our opinion the population estimate which is made by the census board does not rise to the dignity of such an enumeration or census as may be relied upon.  The foregoing statement finds foundation in the "Foreword" of the publication issued by the census board in 1955, wherein we find the following language:  "For the most part the 1955 statistics represent estimates."

             An official county census is one authorized by the county for the purpose of advancing its classification pursuant to chapter 36.13 RCW.

              [[Orig. Op. Page 4]]

            A specific direction is given in the statute with regard to how the census shall be taken (which, it will be noted later, is absent from the law setting up the state census board), and which is specifically covered by RCW 36.13.030 which directs the board of county commissioners to employ one or more suitable persons and that the census taken by such person or persons shall give the full name, age and occupation, if any, of any person resident in the county, as well as other incidental requirements, and the list or lists of names taken by such person or persons shall be verified before an officer authorized to administer oaths.

             The question next logically following is:  Not being able to rely upon state census board estimates, from what source may your office expect to receive certifications of compliance with existing laws by the agency or agencies affected?  RCW 35.02.130 (1953 Supp.) provides in part:

            "The incorporation shall be complete upon the filing of the order of the board of county commissioners declaring it so, in the office of the secretary of state. . . ."

            RCW 35.03.050 provides in part, with respect to cities of the first class:

             ". . .  From and after the filing of said certificate with the secretary of state, said incorporation shall be deemed complete, . . ."

             RCW 35.13.260, referring to annexation, requires the filing of a population certificate with the secretary of state.

             The foregoing section also sets forth the method of ascertaining population and provides that the people who are making the determination of population under the direction of the mayor of the city and chairman of the board of county commissioners make a count "of the number of dwelling units existing in the annexed territory at the time of annexation, multiplied by the factor of 2.95."

             An analysis of the law setting up the state census board, which is chapter 43.62 RCW, provides no method for taking the census, making enumeration of inhabitants, or even estimating population.  It is fundamental that when the  [[Orig. Op. Page 5]] legislature directs a board or commission to do a certain thing or to accomplish a certain purpose, it must give direction as to the manner or means to be used, and in the absence of any direction to the census board as to the method to be used by it, it would seem inescapable that the findings of the census board may not be accepted for the basis of distribution of state funds.

             From a consideration of the foregoing statutes, we conclude that the office of the secretary of state is the source from which certificates of compliance should be received.

             We are, moreover, of the opinion that an incorporation or annexation is not complete for state purposes until the respective certificates have been filed.  Irrespective of the state census board publication, an incorporated area may not avail itself of the advantage of the population residing within the corporate boundaries or annexed boundaries for distribution formula until said incorporated area has complied with the requisite filing.  The only sources from which your office may receive population figures upon which to direct the liquor board to distribute funds are the office of the secretary of state or the last federal census.  You may accept added population by reason of annexation or new incorporations, if such information comes to you from the office of the secretary of state, excluding, of course, any additional population figures which may be given to the secretary of state by the state census board, based upon the estimates of that board.

             We hope this opinion will prove to be of assistance to you.

 Very truly yours,
DON EASTVOLD
Attorney General 

CLYDE A. BARNARD
Assistant Attorney General