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AGO 1953 No. 10 - April 20, 1953
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Don Eastvold | 1953-1956 | Attorney General of Washington

COUNTIES ‑- LICENSING ‑- AUTHORITY OF COMMISSIONERS TO LICENSE TRANSIENT VENDORS AND AUCTIONEERS.

County commissioners have no authority to impose additional license requirements upon "peddlers."  They may, however, impose reasonable conditions upon the issuance of auctioneers' licenses.

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                                                                   April 20, 1953

Honorable Tom A. Durham
Prosecuting Attorney
Whatcom County
Court House
311 Grand Avenue
Bellingham, Washington                                                                                                                Cite as:  AGO 53-55 No. 10

 Dear Sir:

             We acknowledge receipt of your letter of March 24, 1953, requesting our opinion upon the following:

             Does the board of county commissioners have the authority to license transient vendors of merchandise and locally owned auction houses, and to require the giving of certain information, provide for an investigation of moral character and business reputation of the applicants, and provide for an indemnity bond?

             Our conclusions may be stated as follows:

             1. The power to license peddlers has been delegated by statute to county treasurers, and the board of county commissioners has no authority to impose additional licensing requirements.

             2. The board of county commissioners may impose reasonable conditions upon the issuance of an auctioneer's license, including all of the prerequisites set forth in your inquiry with one possible exception.

                                                                      ANALYSIS

             Chapter 36.71 RCW covers the licensing of both peddlers and auctioneers.  The two licenses are distinct, however, the peddlers' license being issued under the provisions of RCW 36.71.020, and the hawkers' or auctioneers' licenses under the provisions of RCW 36.71.070.  For convenience we have divided the question in that manner and shall answer your inquiry as it applies to each separate license.

              [[Orig. Op. Page 2]]

            Under RCW 36.71.020, the authority to issue peddlers' licenses has been expressly delegated to county treasurers.  That statute also sets forth the specific prerequisites to the issuance of such licenses.

             The rule is that a board of county commissioners has only those powers as have been expressly delegated to it by specific statutory language or by necessary implication therefrom.  State ex rel. Taylor v. Superior Court for King County, 2 Wn. (2d) 575, 98 P. (2d) 985.  This particular power having been expressly delegated to county treasurers, it has, by implication, been withheld from the county commissioners.  It is our opinion that the board of county commissioners has no authority to license peddlers.

             With respect to the requirements which could legally be imposed by the county treasurer upon such applicants, we have compared your proposals with the language of the statute, and it appears that the statute includes all of the requisites you desire to impose with the exceptions of an investigation of the moral character of the applicant, and the posting of a bond.

             The bond requirement may be considered first since it is easily disposed of.  RCW 36.71.020 specifically requires that the applicant shall make a five hundred dollar deposit with the county treasurer.  The language of the statute is mandatory and leaves no room for discretion or modification on the local level.  We think that this deposit requirement was intended to be exclusive and, in our opinion, is the only indemnity requirement which can be imposed upon such applicants.

             A requirement of an investigation of the moral character and business reputation of an applicant poses a different question.  Such requirement usually identifies the licensing ordinance as a regulatory or policing measure as distinguished from a revenue measure.  Ordinarily, statutes delegating to municipal authorities a specific licensing power do not diminish nor derogate from the general police power, except where expressly stated or, by necessary implication, inferred from the language of the statute.  Our study of this statute convinces us that there was no intent to diminish the general police power.  The county treasurer may still be vested with some discretion in the matters indicated.

             It should be noted, however, that a licensing ordinance which vests municipal officers with arbitrary discretion in respect to the issuance or withholding of licenses without  [[Orig. Op. Page 3]] prescribing a uniform rule of action, or without laying down some definite rule or set of conditions which must be met, is generally held to be unconstitutional and void.  See 38 Am.Jur., 26, Municipal Corporations, § 337.

             It is our opinion that the county treasurer may be vested with some discretion to inquire into the moral character and business background of an applicant for a peddler's license, provided the ordinance vesting him with such authority establishes a uniform standard of guidance to be applied in all cases.

             Hawkers' and auctioneers' licenses are issued by the county auditor, by order of the board of county commissioners.  (RCW 36.71.070-36.71.080.)

             These sections purport to lay down no prerequisites or conditions of any kind for the issuance of such license, except that the charge for the license shall not exceed twenty-five dollars per year.  Since the legislature made no attempt to pass a complete and exclusive law upon that subject, it may be assumed that it intended to leave to lower political subdivisions the right to implement this statute by ordinance or resolution within the limits of their general powers.

             We note that you desire to impose the same conditions upon the issuance of an auctioneer's license as upon the issuance of a peddler's license.  The reasons for the regulation of one seem to e equally applicable to the other.  Looking to RCW 36.71.020 governing peddlers, we note that with one possible exception, all of the conditions you wish to impose upon the licensing of auctioneers have been imposed by the legislature upon the licensing of peddlers.  The legislature apparently deemed these regulations reasonably necessary in the case of peddlers.  It is our opinion that the same conditions might be equally necessary, or at least equally as desirable, in the case of auctioneers.  The legislature having left the subject open to local control, we think that counties may lawfully impose the conditions set forth in your letter.

             The one possible exception referred to above is the requirement of posting a bond.  Under RCW 36.71.080, the charge for the license shall not exceed twenty-five dollars per year.  Your letter does not indicate whether there would be any charge for the license, nor does it indicate the size of the bond or the amount of the premium payment which would be required for the posting of the bond.  Since you have not asked the question, we have not analyzed the problem whether, if  [[Orig. Op. Page 4]] the charge for the license coupled with the premium charge for the bond would exceed twenty-five dollars per year, the bond requirement could be sustained under the statutes.  If the circumstances require an answer to this question, it may be dealt with separately as you desire.

             It is our opinion that the board of county commissioners may impose as a prerequisite to the issuance of an auctioneer's license, the supplying of information regarding the owners of the merchandise, quantity and value of goods, provide for an investigation of the moral character and business reputation of the applicant, and any other requirement set forth in RCW 36.71.020, pertaining to peddlers.

 Very truly yours,
DON EASTVOLD
Attorney General 

RALPH M. DAVIS
Assistant Attorney General

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