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AGO 1964 No. 114 - August 20, 1964
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John J. O'Connell | 1957-1968 | Attorney General of Washington


COUNTIES ‑- CONSOLIDATION ‑- LEGISLATION WITH VOTER APPROVAL.

The legislature may without violating the state constitution enact legislation providing for the consolidation of Benton and Franklin counties with the approval of a majority of the voters of each county.

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                                                                 August 20, 1964

Honorable Mike McCormack
Washington State Senator
2010 Everest
Richland, Washington

                                                                                                              Cite as:  AGO 63-64 No. 114

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on a question which we paraphrase as follows:

            May legislation constitutionally be enacted providing for the consolidation of Benton and Franklin counties with the approval of a majority of the voters of each county?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            An appropriate starting point in regard to consideration of the question which you have posed is the principle stated in 14 Am.Jur., Counties, § 6, p. 188, as follows:

            "A state may divide its territory into counties and give each county a corporate existence.  Subject to constitutional provisions which limit the power of the legislature and regulate the exercise thereof, the county is subject at all times to legislative control.  Thus, unless a limitation exists in a state Constitution, the legislature has absolute power to provide for the division, addition, or consolidation of existing counties, or a change of their boundaries, or for the creation and  [[Orig. Op. Page 2]] organization of new counties. . . ."  (Emphasis supplied.)

            The primary limitation in our state constitution relative to the legislative alteration of boundaries of existing counties is contained in Article XI, § 3, of the Washington Constitution as follows:

            "No new counties shall be established which shall reduce any county to a population less than four thousand (4,000), nor shall a new county be formed containing a less population than two thousand (2,000).  There shall be no territory stricken from any county unless a majority of the voters living in such territory shall petition therefor and then only under such other conditions as may be prescribed by a general law applicable to the whole state. . . ."

            In addition, by Article II, § 28, of the Washington Constitution, the legislature is prohibited from enacting private or special laws in a number of situations, including "changing county lines" (subsection 18).  However, this prohibition is qualified by the following proviso:

            ". . . provided, this shall not be construed to apply to the creation ofnew counties."  (Emphasis supplied.)

            Thus far in the history of our state, the creation of new counties has been exclusively accomplished by carving out portions of existing counties.  For example, the present Ferry and Pend Oreille counties were created in 1899 and 1911, respectively, by legislation carving out territory of the original Stevens county.  Similarly, the present Grant county was originally a part of Douglas county until taken therefrom by legislation enacted in 1909; and Benton county, one of the two counties with which you are particularly concerned, was established by legislation enacted in 1905, which carved out portions of both Yakima and Klickitat counties.  In each of these cases, however, a portion of the original county was left in existence, whereas in the case you have described the converse would result.  Both Benton and Franklin counties would be eliminated and a new county would be created.

             [[Orig. Op. Page 3]]

            Yet this is not to say that what you have in mind cannot be legislatively accomplished.  We recognize that Article XI, § 3, of our State Constitution, supra, prohibits the establishment of a new county "which shall reduce any county to a population less than four thousand . . ."  It seems apparent, however, that the only purpose of this provision is to prevent a "carving out" of part of an existing county to form a new county where the result will be to leave the original county too small in population to properly function as a county.  This undesirable result would obviously be avoided where the new county takes inall of the territory of the existing counties affected by the change.

            Furthermore, the fact that one of the counties to be eliminated under your proposal (Franklin) is an original statehood county poses no legal obstacle to the plan, in our opinion.  We are aware of the opinion to the apparent contrary rendered by two-to-one majority of the Idaho supreme court in McDonald v. Doust, 11 Ida. 14, 81 Pac. 60 (1905), but are not persuaded by the reasoning thereof.  That case turned on an interpretation of Article XVII, § 1, of the Idaho Constitution, providing:

            "The several counties of the territory of Idaho, as they now exist, are hereby recognized as legal subdivisions of this state."1/

             The act declared unconstitutional by the Idaho court would have (1) abolished the original statehood county of Kootenai without a vote of the people, and (2) created out of the territory thereof two new counties, to be known respectively as Lewis and Clark counties.  Without deciding whether this early Idaho decision would be deemed of any merit were  [[Orig. Op. Page 4]] we here speaking of simply dividing Franklin county alone into two new counties, we are persuaded in any event that the case has no bearing on the Franklin-Benton county consolidation proposal you have submitted for our consideration.

            Next, since the legislation in question would provide for the creation ofa new county rather than merely a change in existing county lines, it would not run afoul of the "special legislation" inhibition contained in Article II, § 28 (18),supra.

            And finally, we may, and do, take notice of the fact that the present populations of the existing Benton and Franklin counties are clearly such as to result in the new county containing a population substantially in excess of 2,000‑- in accord with the requirement of Article XI, § 3, supra, that "No . . . new county [shall] be formed containing a less population than two thousand."

            Of course, your question, as paraphrased, presupposes compliance with the portion of Article XI, § 3,supra, which reads:

            ". . . There shall be no territory stricken from any county unless a majority of the voters living in such territory shall petition therefor . . ."

            Cf. AGO 51-53 No. 398 [[to Gordon Sandison, State Representative on September 8, 1952]], copy enclosed.  Cf. AGO 51-53 No. 398, copy enclosed.

            Therefore, we answer your question in the affirmative.  Legislation may constitutionally be enacted providing for the consolidation of Benton and Franklin counties with the approval of a majority of the voters of each county.  In stating this conclusion, we are not, however, to be taken as having passed upon the desirability of this consolidation.  That, of course, is a matter to be determined (a) by the legislature and (b) by the voters of the counties affected.

             [[Orig. Op. Page 5]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Compare Article XI, § 1, of the Washington Constitution, which provides:

            "The several counties of the Territory of Washington existing at the time of the adoption of this Constitution are hereby recognized as legal subdivisions of this state."

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