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November 10, 1971
Honorable Jack Metcalf
State Senator, 21st District
7421 46th West
Mukilteo, Washington 98275
Cite as: AGLO 1971 No. 127 (not official)
This is written in response to your recent letter requesting an opinion of this office on a question which we paraphrase as follows:
Where a county, by reason of an increase in its population according to the decennial federal census, has become a class A county in accordance with the population criteria set forth in RCW 36.13.010, is a county boundary review board automatically established within such county by operation of law?
We answer this question in the affirmative for the reasons set forth in our analysis.
By its enactment of chapter 189, Laws of 1967, the legislature established an eleven member "boundary review board" in each class AA and class A county.1/ In [[Orig. Op. Page 2]] addition, it authorized the establishment of such boards, but composed of only five members, in any first class county either by resolution of the board of county commissioners or pursuant to a petition signed by a designated percentage of the qualified voters of the county calling for a county-wide election on the question.
In 1969, the legislature enacted a number of amendments to this 1967 act, the most significant of which was an extension of optional coverage to all classes of counties other than class AA and class A (wherein coverage remained mandatory). See, § 1, chapter 111, Laws of 1969, 1st Ex. Sess., now codified as RCW 36.93.030. However, the two methods of implementing this coverage ‑ the resolution and the petition methods ‑ were not altered. In addition, as hereinafter more fully detailed, the 1969 act provided for a reduction in the size of boundary review boards in class A counties (but not class AA) from eleven to five members.
Your question pertains to a certain county which was classified as a first class county, on the basis of population, when both the 1967 and 1969 acts were passed but which, by virtue of the 1970 decennial federal census, has since become a class A county. You have asked whether a boundary review board is automatically established therein without the necessity of any sort of affirmative action by either the county commissioners or the voters.
In answering this question we must be guided by the applicable rules of statutory construction, with our first resort being
[[Orig. Op. Page 3]]
". . . to the context and subject matter of the legislation, consistent with the recognized canon of statutory construction and interpretation that the legislative intent is first to be deduced, if possible, from what it said. . . ." Schneider v. Forcier, 67 Wn.2d 161, 162, 163, 406 P.2d 935 (1965).
Our foremost clue to what the legislature had in mind with regard to the situation presently before us is to be gleaned from new section 10 and amendatory § 2 of chapter 111, Laws of 1969, 1st Ex. Sess., supra. By the first of these sections, the legislature manifested its determination, above noted, to reduce the size of boundary review boards in class A counties from eleven to five members ‑ as follows:
"Eleven member boards created and established in Class A counties by the 1967 legislature shall be reduced to five member boards as provided in this section. The governor shall not make any appointments, except for vacancies to fill unexpired terms, to the boards in these class A counties until 1972, at which time one appointment shall be made by the governor, independently, and one appointment from among the nominees of the special purpose districts as provided in RCW 36.93.060, whose terms shall expire on January 1, 1974. In 1974 the governor shall appoint five members to the board as provided in RCW 36.93.060. The reduction in members by this section shall not affect the board's jurisdiction over cases pending at the time of reduction."
This section, obviously, is limited in application to those counties which were already class A counties when the original 1967 act was passed. However, the very terms of this new section evidenced a legislative recognition that such boards might also exist in counties which were not class A in 1967 but later became so.
Secondly, also in implementation of this decision to reduce the size of class A county boundary review boards, the 1969 legislature, by § 2, chapter 111, supra, amended RCW 36.93.050 relating to the composition of boundary review boards to read as follows:
[[Orig. Op. Page 4]]
"After the effective date of this act, the governor shall within forty-five days appoint a board for each class AA ((and class A)) county consisting of eleven members as provided for in this section. After a board has been established in a county other than class AA ((or class A)) by resolution, by operation of law or by approval of the electors after an election initiated by petition, the governor shall appoint a board within forty-five days for each such county consisting of ((eleven)) five members as provided for in this section.
". . .
"Nominations shall be filed with the office of the governor within thirty days after the effective date of this act, within thirty days after the creation of a boundary review board by election, operation of law, or resolution as provided in RCW 36.93.030, or within thirty days of the creation of a vacancy on the board, as appropriate. Nominations to fill vacancies caused by expiration of terms shall be filed at least thirty days preceding the expiration of the terms. Each source shall nominate at least two persons for every available position. In the event there are less than two nominees for any position, the governor may appoint the member for that position independently."
It is the amendatory phrase "by operation of law," appearing twice within this second pertinent section of the 1969 act, which leads us to conclude that the legislature's own automatic establishment of county boundary review boards in class AA and class A counties is not limited to those counties which were within either of these two classifications only as of the dates of the enactment of the 1967 and 1969 laws. Without this phrase the legislature's implicit recognition, in § 10, supra, that other class A county boundary review boards might come into existence in the future could, perhaps, be explained in terms of anticipated affirmative actions by either a board of county commissioners or the voters of a county, as earlier explained. However, because the legislature expressly added "by operation of law" to the preexisting references to the establishment of such boards by either resolution or petition, the conclusion seems inescapable that it had something more than this in mind; namely, the additional possibility that [[Orig. Op. Page 5]] a boundary review board would be established in a county other than class AA without such affirmative action ‑ i.e., by operation of law. And, clearly, this is precisely what happens when a county grows in population to the extent of being reclassified under RCW 36.13.010, supra. See, State ex rel. Jordan v. DeHart, 15 Wn.2d 551, 131 P.2d 156 (1942); and Faucher v. Rosenoff, 65 Wash. 416, 118 Pac. 315 (1911).
Therefore we believe that your question (as above paraphrased) must be answered in the affirmative. When the subject county attained class A status by virtue of the 1970 federal census, a county boundary review board must be regarded as having then been automatically established ‑ by operation of law ‑ as of that date. The only affirmative action required to effectuate this establishment is the appointment of board members by the governor as provided in RCW 36.93.050, supra. However, no action by either the county commissioners or the voters is called for.
We trust the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Deputy Attorney General
*** FOOTNOTES ***
1/RCW 36.13.010 classifies the several counties of the state by population as follows:
". . . Counties containing a population of five hundred thousand or more shall be known as class AA counties; counties containing a population of two hundred ten thousand or more shall be known as class A counties; counties containing a population of one hundred twenty-five thousand and less than two hundred ten thousand shall be known as counties of the first class; counties containing a population of seventy thousand and less than one hundred twenty-five thousand shall be known as counties of the second class; counties containing a population of forty thousand and less than seventy thousand shall be known as counties of the third class; counties containing a population of eighteen thousand and less than forty thousand shall be known as counties of the fourth class; counties containing a population of twelve thousand and less than eighteen thousand shall be known as counties of the fifth class; counties containing a population of eight thousand and less than twelve thousand shall be known as counties of the sixth class; counties containing a population of five thousand and less than eight thousand shall be known as counties of the seventh class; counties containing a population of three thousand three hundred and less than five thousand shall be known as counties of the eighth class; counties containing a population of less than three thousand three hundred shall be known as counties of the ninth class."