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AGO 1951 No. 151 - October 18, 1951
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Smith Troy | 1941-1952 | Attorney General of Washington

COUNTIES -- DISTRIBUTION OF LIQUOR REVENUES TO -- LAST FEDERAL CENSUS THEREOF

1. In addition to the federal decennial census the population of a county as determined by special federal census or sample survey shall be used in determining the ratio between counties for distribution of liquor revenues.

2. The state auditor is required to make immediate revision after official publication of the last federal population survey or census and is not required to make retroactive ratio determinations for periods earlier than the last revision following publication of a federal census.

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                                                                October 18, 1951

Honorable Cliff Yelle
State Auditor
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 151

Attention:  C. W. Yoakum, Chief Examiner

Dear Sir:

            We acknowledge receipt of your request for an opinion of this office in which you have inquired generally on two questions, and with reference specifically to the problem in Kitsap County.

            1. In determining the ratios between counties for distribution of liquor revenues, is the state auditor's office required to take into consideration surveys of the population of counties which vary the certified figures of the federal decennial census.

            2. If so, to what extent would the revised population figures be made retroactive?

            Our conclusions and answers thereto are as follows:

             [[Orig. Op. Page 2]]

            1. In addition to the federal decennial census, other federal surveys of population, including special census or sample survey, shall be considered and the last thereof used as the population of counties in determining the ratio of distribution of liquor revenues.

            2. Liquor revenues are to be distributed in full periodically throughout the year, leaving no surplus other than the administration reserve, and there is no provision for redetermination of ratios or for retroactive payments.

                                                                     ANALYSIS

            By section 1, chapter 173, Laws of 1939, amending earlier acts (§ 7306-78 Rem. Supp.) the legislature provided the formula by which liquor profits were to be distributed to the state, to the counties and to cities and towns, distribution to the counties to be according to the "last federal census."

            In addition to the regular decennial census taken by the director of census of the United States Department of Commerce, the federal government has taken other surveys of the population and a special census was taken of the population of Benton County which was recognized by this office in an opinion dated May 3, 1948, addressed to the prosecuting attorney of Benton County, a copy of which is enclosed.  Based upon this special census a revision of liquor revenues to said county was made and upon filing with the secretary of state, the classification of that county was changed.

            It appears that in June, 1944, a sample survey was taken of Kitsap County and said survey was recognized in the superior court case of State v. Kitsap County, et al., as a special census although it does not compare in content with the special census of Benton County.  A certification of the returns by the director of census of said survey was filed with the secretary of state, on December 2, 1950, but on September 14, 1948, a copy of said certificate appears to have been shown to the state auditor and liquor control board.  It follows, therefore, that in addition to the federal decennial census other surveys made by the director of the census of the population of the counties shall be used by the state auditor in determining ratios between counties for distribution of the liquor revenues.

            Relative to the second question, it will be noted that subsection 3 of section 1, chapter 187, Laws of 1949, supra, reads in part as follows:

            "3. The computations under sub‑section 2 of this section [distribution to counties] shall be made by the State Auditor, who shall, immediately after the effective date of this act, and immediately following  [[Orig. Op. Page 3]] the official publication of every Federal census * * * file with the Board a list certified by him showing the fractional proportions, in terms of percent or otherwise, coming to each county government * * * and the Board shall make payment to each of said counties * * * in the proportions shown on the certified list last filed with it by the State Auditor under this section."  (Emphasis supplied)

            and contemplates that the auditor will act immediately following the official publication of every federal census.

            Unfortunately, confusion exists even in relation to the publication of the decennial census since the federal law provides only that the director of the census is authorized to issue reports and bulletins of his findings and these reports and bulletins appear to be the only official publication made.  Publication generally is defined as the act of publishing or making public; notice to the public at large either by words, writing or printing; a making known of something to the public for a purpose; rendering information accessible to public scrutiny.  Associated Press v. International News Service, 245 Fed. 244; LeRoy v. Jamieson, 15 Fed. Cas. 373; State v. Grey, 32 Pac. 190; National Geographic Society v. Classified Geographic, 27 Fed. Supp. 655.  The only publication therefore in this instance could be the act of filing the certificate with the secretary of state, as it appears that there was no report or bulletin issued concerning the Kitsap County survey of 1944 except for the director's certificate, and as applied to the Kitsap County problem, December 2, 1950, would appear to be the effective date unless the 1950 decennial census results had been officially published by bulletin or report of the director of the census.

Very truly yours,

SMITH TROY
Attorney General

PHILIP W. RICHARDSON
Assistant Attorney General

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