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AGLO 1979 No. 8 - February 02, 1979
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- COUNTY ‑- COMMISSIONERS ‑- CONSTITUTIONALITY OF PROPOSED LEGISLATION

House Bill No. 75, currently pending before the legislature, which (if enacted) would permit the voters of any noncharter county to increase the composition of their board of county commissioners from three to five members, would in all probability be unconstitutional in view of Article XI, §§ 4 and 5 of the Washington Constitution as heretofore

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                                                                 February 2, 1979

Honorable Donn Charnley
Honorable Hal Zimmerman
Co-Chairman
House Local Government Committee
Public Lands Building
Olympia, Washington 98504                                                                                                                 Cite as:  AGLO 1979 No. 8

Gentlemen:

            By recent letter you directed our attention to House Bill No. 75, currently pending before the legislature, which (if enacted) would permit the voters of any noncharter county to increase the composition of their board of county commissioners from three to five members.  You then asked for our opinion regarding the constitutionality of this legislative proposal in the light of Article XI, §§ 4 and 5 of the Washington Constitution.

            We respond to your inquiry in the manner set forth in our analysis.

                                                                     ANALYSIS

            Section 1 of House Bill No. 75 would amend the provisions of RCW 36.32.010 to read as follows:

             [[Orig. Op. Page 2]]

            "There is established in each ((organized)) county in this state a board of county commissioners ((, to)).  Except as provided in sections 2 and 3 of this 1979 act, each such county legislative authority shall consist of three qualified electors, ((and)) two of ((said board of commissioners)) whom shall constitute a quorum to do business."

            Sections 2 and 3, in turn, would both add new sections to chapter 36.32 RCW providing, respectively, as follows:

            Section 2:

            "(1) A proposition shall be submitted at any general election to the voters of any noncharter county to determine if the county legislative authority shall be increased to five members upon either:

            "(a) Resolution of the county legislative authority; or

            "(b) Petition by county voters, equal to at least ten percent of the voters voting at the last county general election, requesting such submittal.

            "Any petition requesting that such an election be held shall be submitted to the county auditor for verification of the signatures thereon.  Within no more than thirty days after the submission of such a petition, the auditor shall have determined if the petition contains the requisite number of valid signatures.  The auditor shall certify whether or not the petition has been signed by the requisite number of county voters and forward such petition to the county legislative authority.  If such petition has been signed by the requisite number of county voters, the county legislative authority shall submit such a proposition to the voters for their approval or rejection at the next general election held at least sixty days after such proposition has been certified by the auditor.

             [[Orig. Op. Page 3]]

            "(2) If such a proposition receives majority voter approval, the size of the county legislative authority shall be increased to five positions, three of which shall constitute a quorum to do business.  The two additional positions shall be filled as provided in section 3 of this 1979 act."

            Section 3:

            "If the proposition provided for in section 2 of this 1979 act receives majority voter approval, the two newly-created positions shall be filled at elections to be held in the next year.  Subsequent to the approval of such a proposition, the county shall, as provided in this section, be divided into five legislative authority districts, so that each district shall comprise as nearly as possible one‑fifth of the population of the county:  PROVIDED, That no two members of the existing county legislative authority shall, at the time of the designation of such districts, permanently reside in one of the five districts.  The division of the county into five districts shall be accomplished as follows:

            "(1) The county legislative authority shall, by the second Monday of March of that year, adopt a resolution creating such districts;

            "(2) If by the second Tuesday of March of that year the county legislative authority has failed to create such districts, the prosecuting attorney of the county shall petition the superior court of the county to appoint a master to designate such five commissioner districts:  PROVIDED, That the master shall designate such districts by no later than June 1st of that year.  The two legislative authority districts within which no existing member of the county legislative authority permanently resides shall be designated as districts four and five."

             [[Orig. Op. Page 4]]

            Your question is whether passage of this bill would violate Article XI, §§ 4 and 5 of the state constitution insofar as those sections provide, in material part, as follows:

            Article XI, § 4:

            "The legislature shall establish a system of county government,which shall be uniform throughout the state except as hereinafter provided, and by general laws shall provide for township organization, under which any county may organize whenever a majority of the qualified electors of such county voting at a general election shall so determine; and whenever a county shall adopt township organization, the assessment and collection of the revenue shall be made and the business of such county and the local affairs of the several townships therein, shall be managed and transacted in the manner prescribed by such general law.

            "Any county may frame a 'Home Rule' charter for its own government subject to the Constitution and laws of this state . . ." (Emphasis supplied)

            Article XI, § 5:

            "The legislature,by general and uniform laws, shall provide for the election in the several counties of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys and other county, township or precinct and district officers, as public convenience may require, and shall prescribe their duties, and fix their terms of office:  PROVIDED, That the legislature may, by general laws, classify the counties by population and provide for the election in certain classes of counties certain officers who shall exercise the powers and perform the duties of two or more officers.  It shall regulate the compensation of all such officers, in proportion to  [[Orig. Op. Page 5]] their duties, and for that purpose may classify the counties by population . . ." (Emphasis supplied)

            Notably, the "Home Rule" charter provision of Article XI, § 4,supra, was added by an amendment in 1947‑-the Twenty-first Amendment.  Likewise, the proviso to Article XI, § 5 was the result of an earlier amendment‑-the Twelfth Amendment‑-in 1924.  The Twenty-first Amendment clearly represents the only "exception" to the basic requirement of Article XI, § 4 that there shall be a legislatively established uniform system of county government throughout the state.  Since your question (and House Bill No. 75) relates only to noncharter counties, however, that amendment is otherwise irrelevant here.

            As for the earlier Twelfth Amendment, it similarly does not directly bear upon your immediate question since House Bill No. 75 would not involve the consolidation of county office functions in the manner therein provided for.  Nevertheless, this amendment is of historical interest since it preceeded, and was probably precipitated by, the only reported case in which the Washington Supreme Court has had occasion to consider the meaning of the here pertinent language of the constitution.  We have reference toState ex rel. Maulsby v. Fleming, 88 Wash. 583, 153 Pac. 347 (1915), to which we now turn.

            At issue in theMaulsby case was the constitutionality of chapter 55, Laws of 1913 entitled:

            "An act relating to the duties and functions of coroners and justices of the peace; abolishing the office of county coroner in certain counties, and repealing all acts in conflict herewith."

            In substance, that act authorized the prosecuting attorneys and justices of the peace residing at the county seats of all counties except counties of the first class to assume the duties ordinarily imposed upon coroners.  The act then, in § 9, provided that:

            "The office of county coroner is hereby abolished as to all counties of this state except counties of the first class, and none of the provisions of this act shall apply to or in counties of the first class."

             [[Orig. Op. Page 6]]

            The supreme court, however, declared this act to be unconstitutional.  In so ruling, in theMaulsby case at pp. 584-585, the court reasoned as follows:

            "The constitution, at § 4 of art. 11, provides as follows:

            "'The legislature shall establish a system of county government, which shall be uniform throughout the state, . . .'

            "Section 5 of the same article provides:

            "'The legislature, by general and uniform laws, shall provide for the election in the several counties of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys, and other county, township, or precinct and district officers, as public convenience may require, and shall prescribe their duties and fix their term of office.  It shall regulate the compensation of all such officers, in proportion to their duties, and for that purpose may classify the counties by population. . . .'

            "It is apparent from the section last quoted that the legislature is authorized to classify counties by population for the purpose of regulating the compensation of such officers.  This is plain.  Section 4 of the constitution, above quoted, provides, that the legislature shall establish a system of county government which shall be uniform throughout the state.  The legislature has, in accordance with these provisions, classified counties for the purpose of regulating the compensation of county officers.  Rem. & Bal. Code, § 4031 (P. C. 115 § 5).  It seems too plain to admit of serious dispute that a system of county government which permits certain officers in one county which are not permitted in another county is not a uniform  [[Orig. Op. Page 7]] system.  If the legislature may abolish coroners in counties of all classes except the first, it may abolish such officers in any one class and retain them in another.  It may, by the same rule, require certain officers in one county, and entirely different officers with entirely different duties in another.  It cannot be reasonably contended that this would be a uniform system.  If this law is a valid exercise of legislation, then counties of the first class are provided with an officer known as a coroner, with certain defined duties, while all other classes of counties have no such officer.  The duties which usually fall upon such officer are distributed to prosecuting attorneys and certain justices of the peace, thereby imposing duties upon justices of the peace and upon prosecuting attorneys in all counties except the first class, which duties are not imposed upon justices of the peace and prosecuting attorneys in counties of the first class.  It is plain that this is not a uniform system.

            "We have no doubt that the legislature has the power to entirely abolish the office of coroner in all counties of the state, and to impose the duties of that office upon some other officer.  But the legislature certainly has no right under the constitutional provision quoted to provide for officers in counties of the first class which are not provided for in other counties.  In order that the system may be the same, the officers must be the same; and their duties must be the same; otherwise the system is different."

            Significantly, the legislature still lacks the power to abolish certain constitutionally prescribed offices in some counties while retaining those same offices in others for, as this office observed in an opinion dated April 6, 1926, to the Supervisor of Municipal Corporations (copy enclosed):

             [[Orig. Op. Page 8]]

            ". . .

            "It will be noted that section 4, Article 11, with respect to the uniform system of county government, was not amended and that the amendment to section 5, Article 11, did not authorize the legislature to abolish certain county offices in certain classes of counties.

            ". . ."

            Instead, what was accomplished by adoption of the Twelfth Amendment in 1924 was to make it possible for the legislature, by general laws, to:

            ". . . classify the counties by population and provide for the election in certain classes of counties certain officers who shall exercise the powers and perform the duties of two or more officers. . . ."

            Thus, there still must be, for example, both a prosecuting attorney and a coroner, and both an auditor and a clerk, in every noncharter county‑-but under the amendment the functions of those offices may now be exercised by a single individual in designated classes of counties if authorized by the legislature.  Accord, RCW 36.16.030 which currently lists the various required elective officers for all noncharter counties1/ and further provides as follows:

            "In every county there shall be elected from among the qualified voters of the county a county assessor, a county auditor, a county clerk, a county coroner, three county commissioners, a county prosecuting attorney, a county sheriff and a county treasurer:  PROVIDED, That in counties of the fourth, fifth, sixth, seventh, eighth, and ninth classes no coroner shall be elected and the prosecuting attorney shall be ex officio coroner:  PROVIDED FURTHER,  [[Orig. Op. Page 9]] That in ninth class counties no county auditor or assessor shall be elected and the county clerk shall be ex officio county auditor, and the county treasurer shall be ex officio county assessor.2/

             It should also be noted in passing that this last quoted statute, although not presently referred to in House Bill No. 75, would also have to be amended (along with RCW 36.32.010 in accordance with § 1 of the bill) in order to render it consistent with the proposed plan‑-in view of its express reference to three commissions in all counties.  But obviously, of considerably greater importance are the following threshold questions:

            In the light of the constitution, as interpreted by the court inState ex rel. Maulsby v. Fleming, supra, may the plan or concept of House Bill No. 75 be constitutionally implemented at all?  Or, does the constitution thus mean, unequivocably, that the precise number of county commissioners must be, and remain, the same in all noncharter counties?  And finally, if the constitution does have this latter meaning as a general proposition, may the subject bill nevertheless be distinguished and defended on the basis of its proposed involvement of the voters in determining the size of the board of commissioners in each county?

            In accordance with the reasoning of the California court in Coulter v. Pool, 187 Cal. 181, 201 Pac. 120 (1921) we answer the last of these three questions in the negative.  Article XI, § 4 of the Washington Constitution, supra, is identical (in all respects material) to Article XI, § 4 of the California Constitution of 1879.3/   Nevertheless, the state legislature enacted a law providing for the appointment of a county engineer in each California county either (a) by the board of supervisors of any county on its own motion or (b) upon petition therefore signed by a specified percentage of the qualified voters of the county.  Another section of the act then provided that:

            ". . . if the provisions of the act are adopted in a county by the appointment of a county engineer, the office of the  [[Orig. Op. Page 10]] county surveyor shall be abolished either upon the date upon which the appointment is made and accepted if the person who holds the office of county surveyor is the one appointed county engineer, or, in other cases, upon the expiration of the term of the person who holds the office of county surveyor at the time the appointment of county engineer is made. . . ."

            Thereafter, the act was challenged as being in conflict with the constitution‑-and the State Supreme Court in the Coulter case unanimously struck it down, saying:

            ". . . In the counties operating under the general law, each supervisor isex-officio road commissioner in his supervisorial district, whereas, in counties electing to adopt the provisions of the County Engineer Act, the county engineer would be 'ex-officio road commissioner of and for each and every road district of his county.'

            "The word 'system,' as employed in the constitution, means an organized plan or scheme in keeping with which the constituent parts thereof are rendered similar and are connected and combined into one complete, harmonious whole, and it necessarily imports both a unity of purpose and entirety of operation.  (Welsh v. Bramlet, 98 Cal. 219, [33 Pac. 66];Board v. State, 26 Okl. 366, [109 Pac. 563]; State v. Riordan, 24 Wis. 484.) As previously indicated, uniformity means consistency, resemblance, sameness, a conformity to one pattern.  In this resemblance, in this sameness, in this conformity of a class to one pattern, consists the uniformity of system which is essential to the creation and continuity of a uniform system.  And, therefore, the constitutional mandate to establish a uniform system of county government throughout the state means one system applicable alike in all its parts and continuously operating equally in all of the counties of the state.  If a particular county  [[Orig. Op. Page 11]] were expressly exempted from the operation of the act in question, there would be no doubt but that it would violate the uniformity of system contemplated and required by the constitution. And, while in the act under consideration, no particular county is expressly exempted from the operation of the law, nevertheless people of any one or more counties may, without regard to any action taken by the remaining counties, determine that they will or will not be subject to the operation of the law and thereby, of their own volition, create an exception to the general and uniform system of county government.  In other words, the legislature by the act in question attempted to do by indirection that which it could not do directly.  That is to say, having no power to exempt one or more counties from the operation of the act, it could not confer that power upon the people of the different counties.  The legislature itself must by its own enactment establish in the first instance a system of county government uniform throughout the state, and it necessarily follows that such system, when once established, must, in so far as its uniformity is concerned, be kept intact by the legislature and must not be impaired by any subsequent legislation authorizing in counties a material difference in the manner of performing functions of government intrusted to them.

            "Inasmuch as the County Engineer Act provides for a county office, involving the exercise of political functions, we conclude that the said act violates the constitutional requirement that the system of county governments prescribed by the legislature shall be uniform throughout the state, by reason of the fact that it is not mandatory in its operation, but that it is optional with each county whether or not the office provided for by the act shall be established therein.  (Los Angeles County v. Kirk, 148 Cal. 385, [83 Pac. 250].)

            ". . ."

             [[Orig. Op. Page 12]]

            Conversely, neither this ruling nor the decision of our own court inState ex rel. Maulsby v. Fleming, supra, is directly dispositive of the more basic question of whether a system of county government allowing for variances, as between counties, in the number of county commissioners (supervisors in California) would nevertheless be "uniform."  Nor have we found any other cases which answer that question.  In California, as in Washington, there historically has always been the same number of supervisors (commissioners) in every noncharter county.  Presently, for all noncharter counties in California there are five‑-as compared to three in Washington.4/   Thus the question has simply never arisen.

            There is, on this issue, a somewhat analogous situation in the case of school directors in our own state.  Article IX, § 2 of the constitution provides that the legislature is to ". . . provide for a general and uniform system of public schools. . . ." (Emphasis supplied) In doing so, however, the legislature has historically classified school districts on the basis of the number of enrolled students (RCW 28A.57.140) and then varied the number of school board members for districts of different classes.  See,e.g., RCW 28A.57.312.  So far as we can determine this action has never been challenged in the courts.  The problem, however, is that this analogy is not a complete one.  In essence, it involves an underscoring only of the phrase "uniform system" while ignoring the subject of that phrase‑-public schools, in the one case and county government in the other. Unlike Article XI, § 4, supra, Article IX, § 2 does not require a uniform system of school district government.  Perhaps as a consequence, in sharp contrast to the precision with which the language "uniform system of county government" was interpreted both by our own court inState ex rel. Maulsby v. Fleming, supra, and by the California court inCoulter v. Pool, supra, the phrase "uniform system of schools" as used in a section of the Indiana constitution was much more loosely defined inRobinson v. Schenck, 102 Indiana 307, 1 N.E. 698 (1885) as follows:

            ". . . A system which grants to all the various subdivisions of the state equal and uniform rights and privileges, leaving only to the local authorities the right to  [[Orig. Op. Page 13]] govern the local affairs, is a general and uniform system.  The system itself is general and uniform, although the local officers of different localities may not administer the details of the system upon the same plan. . . ."

            There is, in addition, another problem with the school director analogy.  In the case of school districts the variance in the number of directors is at least related to an ascertainable fact (the number of students enrolled) whereas here, under House Bill No. 75, the single factor which would determine the size of a board of county commissioners would be what a majority of the voters of a given county think is appropriate for their county at some particular point in time‑-regardless of its population, area or anything else.  Thus, under the proposal, a Columbia or Wahkiakum County could end up with a board of five county commissioners while a Spokane, Clark or Yakima County remained governed by only a three‑member board.  Cf., Coulter v. Pool, supra.  Could the legislature, itself, establish such a crazy-quilt system?  Most certainly not‑-even if it could, on some rational basis (such as population) vary the size of boards of county commissioners.

            In the final analysis it is this last described irrational possibility that, in our opinion, tips the scale against House Bill No. 75 in its present form.  We leave open, for now, the possibility that a system of county government whereunder the number of commissioners might vary because of such factors and population, area, or even (perhaps) geographical configuration (e.g., San Juan County) would nevertheless be a "uniform system" under the constitution.  But we must conclude, in direct answer to your question, that the system of voter determined variations contemplated by that bill would not be such a uniform system.  We thus must advise you that House Bill No. 75 is, in all probability, unconstitutional as drafted.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/In the case of "Home Rule" counties only the prosecuting attorney is constitutionally required although others may be, and to varying degrees have been, retained in the only three such counties (King, Clallam and Whatcom) which have thus far adopted their own charters.

2/See also, RCW 36.16.032.

3/No longer, however, a part of the California constitution because of a repeal in 1933.

4/See, Deering's California Codes, Government, § 25000.

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