MOTOR VEHICLE FUND AND MOTOR VEHICLE EXCISE FUND ‑- DISTRIBUTION OF TO CITIES AND TOWNS ‑- BASIS FOR DETERMINATION OF POPULATION ‑- NEW INCORPORATIONS AND ANNEXATIONS

MOTOR VEHICLE FUND AND MOTOR VEHICLE EXCISE FUND ‑- DISTRIBUTION OF TO CITIES AND TOWNS ‑- BASIS FOR DETERMINATION OF POPULATION ‑- NEW INCORPORATIONS AND ANNEXATIONS

1. For the purpose of making distributions from the motor vehicle fund and the motor vehicle excise fund, the population of a newly incorporated city or town for which no effective population basis has been established by the State Census Board, must be determined by the population shown in the records of incorporation of such city or town filed with the Secretary of State.  Such determination is effective as of the date a certified copy of the order of the county commissioners declaring an area incorporated is filed with the Secretary of State.

2. For the same purposes, the population of an annexed area is determined by applying the formula prescribed by RCW 35.13.260 and is added to that of the annexing city or town.  Where annexation is effective subsequent to September 1st of any calendar year, the population basis becomes effective one year from January 1st next following annexation.  Otherwise it becomes effective on and after January 1st following annexation.  However, if the State Census Board has determined a population basis which reflects the annexation, such population basis is controlling.

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                                                                   June 26, 1953

Honorable Charles R. Maybury
State Treasurer
Legislative Building
Olympia, Washington                                                                                                                Cite as:  AGO 53-55 No. 75

Dear Sir:

            By your letter of June 1, 1953, you requested our opinion as follows:

            "May we have your opinion as to which law governs the proper method of determining population, and the effective date for the distributing thereof of motor vehicle excise tax and gas tax to the newly incorporated cities and towns in the state, and those where new territory has been annexed?"

             [[Orig. Op. Page 2]]

            It is our conclusion that:

            1. For the purpose of making distributions from the motor vehicle fund and the motor vehicle excise fund, the population of a newly incorporated city or town for which no effective population basis has been established by the state census board, must be determined by the population shown in the records of incorporation of such city or town filed with the secretary of state.  Such determination is effective as of the date a certified copy of the order of the county commissioners declaring an area incorporated is filed with the secretary of state.

            2. For the same purposes, the population of an annexed area is determined by applying the formula prescribed by RCW 35.13.260 and is added to that of the annexing city or town.  Where annexation is effective subsequent to September 1st of any calendar year, the population basis becomes effective one year from January 1st next following annexation.  Otherwise it becomes effective on and after January 1st following annexation.  However, if the state census board has determined a population basis which reflects the annexation, such population basis is controlling.

                                                                     ANALYSIS

            1. Chapter 60, Laws of 1949, now codified as RCW 43.62.020, relating generally to the allocation and distribution of state funds to cities and towns, provides that after publication of the figures of the 1950 federal census for cities and towns allocations shall be based on the federal census.  The act contains a proviso that as to cities and towns incorporated after the effective date of the act (March 16, 1949), allocations shall be made on the basis of the population figures shown in the records of incorporation filed with the secretary of state.  This act carried an emergency clause and became effective March 16, 1949.

            Section 1, chapter 143, Laws of 1949, now codified as RCW 46.68.110, relating specifically to the allocation and distribution of the motor vehicle fund, provides that the next preceding official United States census shall determine the basis for allocations to cities and towns having corporate existence on the date of such official census.  Like chapter 60, which was enacted at the same session of the legislature, section 1, chapter 143, Laws of 1949, contains a proviso as to subsequently incorporated cities and towns.  Under this proviso, the population of areas incorporated after the taking of the official United States census is to be determined, as of the date of incorporation, by the population figure contained in the certificate of the incorporating officials filed with the secretary of state.  Chapter 143 was approved by the Governor on March 16, 1949, the same day on  [[Orig. Op. Page 3]] which chapter 60 was approved and became effective.  Chapter 143 also carried an emergency clause, but by express provision did not become effective until April 1, 1949.

            As applied to your inquiry, both chapters 60 and 143, Laws of 1949, make provision for allocations to subsequently incorporated areas based on the population shown in the incorporation records.  Neither act makes provision for sudden increases in population resulting from annexation to cities and towns.

            RCW 82.44.150 (chapter 152, Laws of 1945), relating to the distribution of the motor vehicle excise fund, provides that the determination of the population of cities and towns shall be based on the latest federal census or any subsequent official estimates made by the federal bureau of census.  Such determination is to be made as of the first of January of each year and is to be used throughout the calendar year.  Under this act no provision is made as to subsequent incorporations or annexations.  However, inasmuch as chapter 60, Laws of 1949 (RCW 43.62.020), is the later enactment, we believe that it must be construed as modifying or superseding the provisions of RCW 82.44.150.  Under this interpretation, the proviso of RCW 43.62.020 requiring the determination of the population of newly incorporated areas based on the population shown in the incorporation records became effective as to the distributions of the motor vehicle excise fund as well as to distributions of the motor vehicle fund.

            The incorporation of a city or town becomes complete upon the filing with the secretary of state of a certified copy of the order of the board of county commissioners declaring the area incorporated (RCW 35.02.130).  The population basis provided for newly incorporated areas thus becomes effective upon the filing of a certified copy of such order.

            Chapter 96, Laws of 1951, now codified as RCW 43.62.030, pertaining to the state census board, provides that on or before June 1st of each year, the board shall file with the secretary of state a certificate showing its determination of the population of the cities and towns of the state.  It further provides that:

            "On and after January 1st next following the date when such certificate is filed the population shown in such certificate shall be used as the basis for the allocation and payment of state funds to cities and towns until the next January 1st following the filing of successive certificates by the board."

             [[Orig. Op. Page 4]]

            This act does not repeal or expressly amend the prior acts embodied in RCW 43.62.020, RCW 46.68.110, or RCW 82.44.150, hereinabove discussed.  The purpose of the act is to substitute the annual state census for that of the federal decennial census as the basis for determining the population of cities and towns in connection with the allocation and distribution of state funds.  It is also provided that the population basis so established shall be used throughout the calendar year.  To this extent chapter 96, Laws of 1951, being the later enactment, further modifies and supersedes the prior acts.

            However, chapter 96, Laws of 1951, makes no reference to new incorporations of, or annexations to, cities and towns.  We interpret the act as applying only to cities and towns having corporate existence at the time of the taking of the state census.  It does not change the effect of the prior enactments under which the population of newly incorporated cities and towns is determined by the incorporation records.

            2. Section 5 of chapter 248, Laws of 1951, codified as RCW 35.13.260, relating to annexations, sets out a formula under which the mayor of an annexing city and the chairman of the board of county commissioners of the county in which the annexed area is located are directed to determine the new population of the city after annexation.  The population so determined is to be certified to the secretary of state.  It is further provided that:

            "* * * such population shall thereafter be used for allocating all state funds and for all other purposes until a new population is fixed for the county and city in accordance with law.

            "No change shall be made in the population basis for the distribution of state funds until on and after January 1, 1952; and whenever annexation is made effective subsequent to September 1st in any year and prior to January 1st next following, such population basis for distribution shall not be used until on and after one year following the next subsequent January 1st; and in all other cases such population basis shall become effective on and after January 1st next following the date annexation becomes effective."

             [[Orig. Op. Page 5]]

            Chapter 248 contained an emergency clause and became effective March 19, 1951, the date of its approval by the Governor.

            As we have noted above, none of the prior statutes, including chapter 96, Laws of 1951, make provision for the reflection of the increase in the population of cities and towns resulting from annexation.  Chapter 96, Laws of 1951, codified as RCW 43.62.030, is now the basic statute for the determination of population for the purpose of allocating and distributing state funds.  It carried an emergency clause and became effective March 13, 1951.  Chapter 248, Laws of 1951, does not expressly amend chapter 96, Laws of 1951.  However, having been enacted and having become effective subsequent to the enactment and effective date of chapter 96, Laws of 1951, we are of the opinion that as to any conflict between the two acts, the provisions of chapter 248 prevail.  This is in accordance with the general rules of statutory construction.  Under this interpretation, the provisions of section 5 of chapter 248, providing for the determination and use of a population base which will reflect the increase in population resulting from annexation, must be given effect.  To this extent chapter 248 by implication modifies and supplements the provisions of chapter 96.

            By way of summary, we are of the opinion that RCW 43.62.030 substitutes the state census for that of the federal census as the basis for determining the population of cities and towns for the purpose of allocating and distributing state funds.  The proviso of RCW 43.62.020 as to new incorporations is still in effect, and the population of newly incorporated cities and towns as shown by the incorporation records must be used in making distributions.  Likewise, the provisions of RCW 82.44.150 setting forth the method of determining the new population of cities and towns which have annexed adjoining areas are effective and the population basis so determined must be used as in that section provided.  Such population bases are effective until new population bases for cities and towns, which reflect the changes resulting from new incorporations or annexations, have been established by the state census board and have become effective.

Very truly yours,

DON EASTVOLD
Attorney General

FRED L. HARLOCKER
Assistant Attorney General