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AGO 1957 No. 19 - February 19, 1957
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John J. O'Connell | 1957-1968 | Attorney General of Washington

COUNTIES, COMMISSIONERS, POWERS OF CITIES AND TOWNS, ANNEXATION

A board of county commissioners has no discretion in calling or not calling an annexation election under RCW 35.13.040

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                                                                February 19, 1957

Honorable R. DeWitt Jones
Prosecuting Attorney of Clark County
301 Court House
Vancouver, Washington                                                                                                               Cite as:  AGO 57-58 No. 19


Attention:  William Church, Deputy

Dear Sir:

            You have requested our opinion concerning the calling of an annexation election by a board of county commissioners.  We paraphrase the question as follows:

            Assuming that the requirements of RCW 35.13.010, 35.13.020 and 35.13.030 have been complied with, may the board of county commissioners exercise discretion in calling or not calling an election, as provided in RCW 35.13.040, pursuant to the prayer of a petition for annexation of an unincorporated area to a city or town?

            We answer in the negative.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            The applicable statutes provide as follows:

            RCW 35.13.010

            "Any portion of a county not incorporated as part of a city or town but lying contiguous thereto may become a part of the city or town by annexation.  An area proposed to be annexed to a city or town shall be deemed contiguous thereto even though separated by water or tide or shore lands on which no bona fide residence is maintained by any person."

            RCW 35.13.020

            "A petition for an election to vote upon the annexation of a portion of a county to a contiguous city or town signed by qualified voters resident in the area equal in number to twenty percent of the votes cast at the last election may be filed in the office of the board of county commissioners:  Provided, that any such petition shall first be filed with the legislative body of the city or town to which the annexation is proposed, and such legislative body shall, by resolution entered within sixty days from the date of presentation, notify the petitioners of its approval or rejection of the proposed action.  The approval of the legislative body shall be a condition precedent to the filing of such petition with the board of county commissioners as hereinafter provided.  The costs of conducting such election shall be a charge against the city or town concerned."

            RCW 35.13.030

             [[Orig. Op. Page 3]]

            "A petition filed with the county commissioners to call an annexation election shall particularly describe the boundaries of the area proposed to be annexed, state the number of voters residing therein as nearly as may be, and shall pray for the calling of an election to be held among the qualified voters therein upon the question of annexation."

            RCW 35.13.040

            "Upon the filing of a petition to call an annexation election, the board of county commissioners at its next meeting shall fix a date for hearing thereon to be held not less than two weeks nor more than four weeks therefore, of which hearing the petitioners must give notice by publication for at least two weeks prior thereto in some newspaper printed and published in the city or town to which the area is proposed to be annexed.  Upon the date fixed, the board shall hear the petition, and if it complies with the requirements of law, shall grant it.  The hearing may be continued from time to time for an aggregate period not exceeding two weeks."  (Emphasis supplied.)

            RCW 35.13.040 is clearly in mandatory terms, stating that the board of county commissioners "shall" grant the petition to call an annexation election if certain "requirements of law" are met.  We believe that the requirements of law referred to are those set out in RCW 35.13.010, 35.13.020 and 35.13.030 above quoted.

            It is our opinion that the purpose of the hearing provided for in RCW 35.13.040 is to give interested parties an opportunity to question whether these requirements have been met or to show that they have in fact not been met.  It may be, for example, that the area proposed for annexation is not contiguous within the meaning of RCW 35.13.010, or that the petition does not accurately describe the boundaries of the area, pursuant to RCW 35.13.030.

             [[Orig. Op. Page 4]]

            Your question assumes, however, that all of the statutory requirements have been complied with.  This being true, the board of county commissioners has no other alternative than to call an election.

            The general rule is stated in McQuillin, Municipal Corporations, 3rd Ed., § 7.17, as follows:

            "In view of the fact that, in proceedings to extend municipal boundaries, the public rights and powers relating to local self-government are involved, most of the state laws place the final decision with a majority of the voters whose political rights, property and interests are directly concerned.  Thus where the statutes provide for the submission of change of limits by the municipal council, or other tribunal, upon application by petition or otherwise, the courts uniformly hold that where the forms of law have been substantially followed by the petitioners the council or other tribunal can exercise no discretion whatever but must submit the proposition to the electors, and upon refusal, the courts will compel submission by mandamus. . . ."

            You stated in your letter that the city council of Vancouver, Washington will approve a pending petition for annexation of an unincorporated area; that the statutory requirements have been complied with, and that the petition will be filed with the board of county commissioners.  Unless it is shown at the hearing called pursuant to RCW 35.13.040 that the requirements of RCW 35.13.010, 35.13.020 and 35.13.030 have in fact not been substantially complied with, we conclude that the board of county commissioners must call an election as provided in RCW 35.13.040,et seq.

            We hope this opinion will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General


DAVID S. BLACK
Assistant Attorney General

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