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July 28, 1972
Honorable John C. Merkel
614 Division Street
Port Orchard, Washington 98366
Cite as: AGLO 1972 No. 56 (not official)
This is written in response to your recent letter requesting our opinion on the following questions relative to a county's power to codify its ordinances:
"1. Does a [noncharter] county have the authority to codify its ordinances as an official code of the county?
"2. If so, are copies of such codes in published form adequate evidence, without further proof, of the underlying ordinances?"
In stating your first question we have inserted the qualifying word "noncharter" so as to exclude from this opinion the case of a county such as King which has adopted its own governmental charter under Article XI, § 4 (Amendment 21) of the state Constitution, and thus is no longer dependent upon the legislature for its powers. Accord, letter dated January 26, 1970, to State Senator Fred H. Dore, copy enclosed. Since Kitsap county has not adopted such a charter it remains governed by the rule generally applicable to all municipal corporations; namely, that it has only such powers as have been expressly granted to it by the legislature or as are necessary to be implied therefrom. See, Sasse v. King County, 196 Wash. 242, 82 P.2d 536 (1938).
This same rule, of course, is also applicable to most incorporated cities and towns in this state ‑ excepting only (a) those which have adopted home rule charters under Article XI, § 10 of the state Constitution; and (b) those which have come under the optional municipal [[Orig. Op. Page 2]] code since its adoption by the 1967 legislature.1/ Accord, Othello v. Harder, 46 Wn.2d 747, 284 P.2d 1099 (1955).
This brings us, then, to certain 1957 legislation to which you have referred in your letter. By its enactment of §§ 1-8, chapter 97, Laws of 1957 (RCW 35.21.500-35.21.570), the legislature expressly granted to all cities and towns in this state the authority to codify their ordinances in the manner contemplated by your questions. Section 6 of this act (RCW 35.21.550) further provides that:
"Copies of such codes in published form shall be received without further proof as the ordinances of permanent and general effect of the city or town in all courts and administrative tribunals of this state."
However, as you have correctly pointed out, no similar legislation has ever been enacted for counties. Your question, in essence, thus becomes that of whether the enactment of such legislation for counties will be necessary before they may codify their ordinances in the same manner, and with the same legal effect, as may cities under chapter 97, supra.
Because of the above described similarities between the sources of authority of cities and counties, it is our opinion that such enabling legislation for counties will be necessary. If we were to conclude otherwise we would, of necessity, have to label chapter 97, supra, as useless or unnecessary on the ground that the powers granted by this act already existed in the case of cities and towns ‑ and this, of course, is a presumption in which we will not indulge. See, Trudeau v. Pac. States B. & B. Co., 20 Wn.2d 561, 148 P.2d 453 (1944).
Accordingly, absent legislation pertaining to counties which is comparable to chapter 97, Laws of 1957, supra, we must conclude that a noncharter county such as Kitsap does not presently have the authority to codify its ordinances as an official code which may be admitted into evidence in the same manner as official city codes may be under § 6 (RCW 35.21.550), supra.
It is hoped that the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Deputy Attorney General
*** FOOTNOTES ***
1/See, chapter 119, Laws of 1967, 1st Ex. Sess.