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AGO 1950 No. 302 - July 18, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington


Rules adopted by District Board of Health operate throughout the jurisdiction including cities, superseding any conflicting ordinances.

A city cannot enact a fee for providing services assumed by Health District.

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                                                                    July 18, 1950

J. A. Kahl, M.D.
Acting Director
State Department of Health
Smith Tower
Seattle 1, Washington                                                                                             Cite as:  AGO 49-51 No. 302

Dear Sir:

            This is in answer to your letter of June 21, 1950, in which you request our opinion on the following question:

            "1. If the District Board of Health adopts rules and regulations that deal with the control of communicable diseases dangerous to the public's health and sanitary matters that best admit of universal rule, are these mandatory upon all of the cities that have joined in the health district?

            "2. If it were the desire of the Board that the cities adopt these regulations and make any additions as long as they are not less stringent nor in conflict with the board's regulations, could they then adopt the Board's regulations by reference and thus save the necessity for printing the entire ordinance, including the rules and regulations of the District Board of Health.  If the  [[Orig. Op. Page 2]] cities adopt ordinances and rules and regulations by reference, are they permitted to establish a fee of a sufficient amount to support the service, or at least partially support the service for the enforcement of these rules and regulations."

            Our conclusions may be summarized as follows:

            1. Rules adopted by a District Board of Health and approved by the State Department of Health, become operative throughout the jurisdiction of the district, superseding any conflicting city or county ordinances.

            2. There is no objection a city legislating "by reference" or adopting ordinances not in conflict with State or district health regulations, but where there is a district regulation, the city cannot enact a fee for the same service.


            Your first question is whether regulations of a district board of health are mandatory upon all of the cities that have joined the district.  Section 6 of the Health District Act, section 6, chapter 183, Laws of 1945 (Rem. Rev. Stat. 6099-15) provides as follows:

            "The District Board of Health shall constitute the Board of Health for all the territory included in the health district, and shall supersede and exercise all the powers and perform all the duties by law vested in the County or City or Town Board of Health of any county, city or town included in the health district, except as herein otherwise provided."

            The only exception to the jurisdiction of the district over cities and towns is under section 4 of the Act whereby primary cities (20,000 to 100,000 population) may come into the district, and the respective functions of the district and city boards of health are fixed by agreement.  In all other cities and towns included in a health district, health boards are abolished and their functions superseded by the district board.

             [[Orig. Op. Page 3]]

            In other words, a city, other than first class, within a health district, ceases to be a separate entity in respect to the functions performed by the board of health.

            Your second question involves a number of problems.  First, although there is no objection generally to adopting regulations by reference, district health regulations, when approved by the state department are state regulations made pursuant to general law and are superior to city and town ordinances.

            Therefore, it follows that if fees are to be collected for services subject to district regulations, they must be collected by the district health officer and not by a city within the district which would gain no authority in such matters by passage of an ordinance adopting verbatim the district regulations.

            Clearly, however, cities within health districts retain power to adopt enforce ordinances on subjects not covered by district regulations.

            Section 11, Article XI of the state constitution provides:

            "Any county, city, town or township, may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws."

            The proposition that cities can legislate under this constitutional provision on subjects not covered by general law is upheld by the Supreme Court inState ex rel. McBride v. Superior Court, 103 Wash. 409, 174 Pac. 973.  On page 415 the court said:

            "* * * It is true that the constitution provides that a state board of health shall be created and makes no provision in terms for the establishment of city boards of health; but a city has general power, both by statute and at common law, to enact all necessary police regulations for the preservation of the morals and health of its inhabitants, the only limitation being a contrary provision of the general law.  * * *"

             [[Orig. Op. Page 4]]

            It is our opinion that, despite section 6 of the Health District Act which provides that the district board of health shall exercise all power formerly exercised by city health officers, if the district board fails to act, or it is decided that certain matters have only local application, there is no objection to the city enacting an ordinance consistent with and not covering the same ground as an applicable district regulation.  Proper fees may be charged by the city for serving such ordinances.

Very truly yours,

Attorney General

Assistant Attorney General

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