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AGO 1966 No. 96 - July 21, 1966
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John J. O'Connell | 1957-1968 | Attorney General of Washington


COUNTIES ‑- BOUNDARIES ‑- LOCATION OF DISPUTED, UNCERTAIN OR AMBIGUOUS LINES ‑- POWER OF LEGISLATURE ‑- CREATION OF BOUNDARY LINE COMMISSION.

(1) Existing statutory procedures set forth in RCW 36.04.400 and in RCW 36.05.010-36.05.080 do afford a legally sufficient means of establishing the location of disputed county boundary lines; however, this is not to say that these procedures possess optimum practical utility in view of the nature and extent of potential county boundary disputes.       

(2) The legislature may constitutionally create a county boundary line commission (in the general form provided for by House Bill No. 157) for the purposes set forth in your second question, as paraphrased.         

(3) The legislature may amend existing statutes describing the boundaries of county boundaries for the sole purpose of removing ambiguities and clarifying uncertainties, without violating the prohibition in Article II, § 28 (18).

(4) The legislature may vest a boundary line commission with the power to hear and decide county boundary disputes and, by order, to conclusively locate and establish disputed county boundary lines on a prospective basis ‑ subject to compliance with pertinent criteria regarding the delegation of "quasi-judicial" power.

(5) The legislature could, as a part of such legislation, preclude review in the courts by any of the counties involved or any citizen residing in the area affected, as to the prospective application of the true county boundary lines established by the boundary commission's order; however, no such administrative order could have the effect of determining private property rights required prior to the final adjudication of the true county boundaries.

                                                              - - - - - - - - - - - - -

                                                                    July 21, 1966

Honorable Jack L. Burtch
Chairman, Subcommittee on Local Government
Legislative Council
1319 North F
Aberdeen, Washington

                                                                                                                Cite as:  AGO 65-66 No. 96

Dear Sir:

             [[Orig. Op. Page 2]]

            This is written in response to your letter, previously acknowledged, requesting an opinion of this office on several questions relative to the settling of county boundary disputes.  On the basis of the issues raised by your letter, supplemented and clarified by recent personal conversations with you and with the legislative council's staff, we paraphrase your questions as follows:

            (1) Do existing statutory procedures set forth in RCW 36.04.400 and in RCW 36.05.010-36.05.080 afford a legally sufficient means of establishing the true location of disputed county boundary lines?

            (2) May the legislature constitutionally create a county boundary line commission in generally the form provided for in House Bill No. 157 (which was introduced but not passed at the 1965 legislative session) for the purpose of conducting such research and fact-finding investigation as is necessary in order to enable the legislature to prepare and enact remedial legislation clarifying ambiguous or uncertain statutory legal descriptions of existing county boundaries?

            (3) May the legislature amend the existing statutes describing county boundaries, for the sole purpose of removing ambiguity and uncertainty, without violating Article II, § 28 (18) of the state constitution?

            (4) In the alternative, may the legislature vest a boundary line commission with the power to hear and decide county boundary disputes and, by order, to conclusively locate and establish a disputed county boundary line?

            (5) If the alternative set forth in question (4) were adopted, could the legislature preclude review in the courts by any of the counties involved or any citizen residing in the area affected, who might prefer for some reason to live in another county?

            We answer your questions in the manner set forth in our analysis.

                                                                     ANALYSIS

            Most of the counties presently in existence in this state were originally created prior to statehood, by acts of the Territorial legislature.  When statehood finally came, in 1889, these Territorial counties became counties of the state of Washington by virtue of Article XI, § 1, of the state  [[Orig. Op. Page 3]] constitution, which provided:

            "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."1/

             In addition to adopting the various Territorial counties as legal subdivisions of the state,2/ the framers of the state constitution placed stringent limitations upon the subsequent alteration of county boundaries.  By Article II, § 28 (18), they provided as follows:

            "The legislature is prohibited from enacting any private or special laws in the following cases:

            ". . .

            "18.Changing county lines, locating or changing county seats, provided, this shall not be construed  [[Orig. Op. Page 4]] to apply to the creation of new counties."  (Emphasis supplied.)

            Regarding the creation of new counties, the framers provided, in pertinent part, 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. . . ."  (Article XI, § 3.)3/

             In summary, these provisions mean, in practical effect, that existing established county boundaries can only bechanged through the establishment of new counties ‑ either by consolidation, or by subdivision of existing counties.4/   However, as we understand the questions you have raised, your present concern (at least as encompassed in the instant opinion request) is not with the procedure available for changing established county boundaries ‑ rather, you are presently concerned  [[Orig. Op. Page 5]] with a somewhat different aspect of the matter.

            In essence, you ask what can be done about problems of uncertainty as to the true location of existing county boundaries resulting from ambiguity, vagueness, or the absence of meaningful geographical references in the statutes5/ describing the boundaries of the state's thirty-nine present counties.  You have specifically referred to two distinct types of problem: (1) The "overlap" problem, involving territory which by legislative description appears to lie in more than one county; and (2) the "lost or uncertain boundary" problem, involving instances where the geographic point of reference used in the legislative description has either been lost, or destroyed, moved, or never in reality existed as a definite point or line upon the ground.

            Recognizing that this aspect of the matter constitutes the true scope of your present inquiry, we have nevertheless deemed it appropriate to provide, as a preface to considering your specific questions, the foregoing review of the constitutional restrictions established at the time of statehood relative tochanging county boundaries for the reason that it is, of course, within the framework of these constitutional restrictions that the legislature must, of necessity, work in handling the matter of clarification of doubtful or disputed existing county boundary lines.6/   We turn now to the questions which you have asked ‑ first, as to the legal sufficiency of existing statutory procedures, and second, as to the constitutionality of certain proposed or contemplated legislative approaches to the problem.

            Question (1):

            The first of the existing statutes designed to afford a procedure for the solution of county boundary line disputes is RCW 36.04.400, which provides:

            "All common boundaries and common corners of counties not adequately marked by natural objects or lines, or by surveys lawfully made, must be definitely established by surveys jointly made by all the counties affected thereby, and approved by the board of county commissioners of  [[Orig. Op. Page 6]] such counties.  The cost of making such surveys shall be apportioned equally among the counties interested, and the board of county commissioners shall audit the same, and the amounts shall be paid out of the county current expense fund."

            This statute was originally a territorial law contained in the code of 1881.  Its apparent purpose was, and is, to require the boards of county commissioners of counties having "common boundaries and common corners . . . not adequately marked . . ." to cause a jointly financed survey to be conducted for the purpose of establishing where upon the land the true county boundary, as described by statute, lies.  In other words, this statute places responsibility upon the governing bodies of the counties themselves to pursue a certain specified course of action in order to establish and mark their respective county boundaries.

            To the extent that this procedure is followed, and the respective governing bodies are able to agree upon the results of the survey, the procedure provided for by RCW 36.04.400,supra, would seem to provide a legally adequate means of rectifying the type of problem which arises because of the loss or destruction of geographical reference points described in the applicable county boundary statutes.  However, it is equally apparent that this survey procedure, by itself, cannot establish a county boundary line where the statutory description is too vague or uncertain to permit the conduct of a meaningful survey at all.  Nor, of course, can a survey solve the "overlap" type of problem which results from the presence of conflict or inconsistency, in the statutory descriptions of neighboring counties.

            Next to be considered are the procedures outlined in RCW 36.05.010 ‑ 36.05.080.  These code sections contain an act (chapter 76, Laws of 1897) which was passed within the first decade after statehood but which, apparently, has not often been used.

            RCW 36.05.010 provides:

            "Whenever the boundary line between two or more adjoining counties in this state are in dispute, or have been lost by time, accident or any other cause, or have become obscure or uncertain, one or more of the counties, in its corporate name, may bring and maintain suit against such other adjoining county or counties, in equity, in the superior court, to establish the location of the boundary line or lines."

             [[Orig. Op. Page 7]]

            RCW 36.05.020 requires that such a suit shall be tried before a superior court judge who is neither a resident of the county which is a party to the suit, nor of a judicial district embracing any such county.  Intervention by a majority of the voters living in the territory embracing ". . . such disputed, lost, obscure, or uncertain boundary line . . ." is authorized, but not required, by RCW 36.05.030.

            RCW 36.05.040 declares that:

            "The boundaries of such territory, the number of voters living therein, and the sufficiency of such petition are questions of fact to be determined by the court."

            Procedurally, the litigation is declared to be governed by the appropriate rules of the supreme court relating to civil actions.  RCW 36.05.060.  The court's authority in such an action is spelled out by RCW 36.05.050, as follows:

            "The court shall have power to move or establish such boundary line on any government section line or subdivisional line thereof, of the section in or through which said disputed, lost, obscure or uncertain boundary line may belocated, or if such boundary line is unsurveyed territory, then the court shall have power to move or establish such boundary line so it will conform to extensions of government section lines already surveyed in that vicinity."  (Emphasis supplied.)

            Finally, RCW 36.05.070 provides for filing and recording the court decree with the secretary of state and with the auditors of the counties who are parties to the suit.

            To the extent that you have raised a question as to whether the procedures outlined in chapter 36.05 RCW, supra, violate the prohibition against changing county boundaries by special legislation, (Article II, § 28 (18), supra) we must, respectfully, decline to answer.  This office must presume acts duly passed by our legislature to be constitutional until otherwise adjudged by the courts.  See, AGO 1891-92:93; 1893-94:38; 1907-08:110; 1927-28:867; 1945-46:260; and AGO 59-60 No. 18.  A sound practical reason for this policy is, of course, that once the constitutionality of a duly enacted statute is attacked in court, the duty of responsibility of appearing in court in defense of the statute will ordinarily fall upon this office.  See, e.g., RCW 7.24.110.

             [[Orig. Op. Page 8]]

            In this case, however, were the procedures contained in RCW 36.05.010,et seq., supra, to be challenged, we would have good reason to anticipate a judicial determination that no "special legislation" problem is involved in these statutory procedures.  The prohibition, as we view it, of Article II, § 28 (18), supra, is against special legislation changing established county boundaries.  Here, on the other hand, the basic jurisdictional assumption is that the boundary line in question is not clearly established but rather is in dispute, or has been lost by time, accident, or other cause, or has become obscure and uncertain.  RCW 36.05.010, supra.

            Furthermore, any "change" in any county boundary resulting from litigation initiated under the purview of these statutes would be, in our judgment, merely such a "change" as was found by the court to be necessary in order to cause the true county boundary as marked upon the ground, to coincide with legislative intent as expressed in the descriptive statutes.  See, RCW 36.05.050,supra.7/

             As for the question of whether the procedures outlined in RCW 36.05.010, et seq., supra, afford a legally sufficient means of establishing the location of disputed county boundary lines, our opinion is, basically, in the affirmative.  We believe that these procedures, coupled, where necessary, with use of the survey procedure provided for by RCW 36.04.400, supra, provide a means of resolving not only the type of dispute which arises where the legislative boundary description is vague or uncertain but also the type of problem arising where, by reason of inconsistencies in respective legislative descriptions of adjacent counties, it appears that certain territory lies in more than one county.

             [[Orig. Op. Page 9]]

            Illustrative of the latter type of dispute is the case of Puget Sound Nat. Bank v. Fisher, 52 Wash. 246, 100 Pac. 724 (1909).  At issue was the question of whether a certain tract of land located on Protection Island (a small island in the Straits of Juan de Fuca) was a part of Jefferson county or of Clallam county.  While this litigation was actually initiated by private citizens seeking to perfect their respective claims to ownership of the tract in question ‑ which, in turn, depended upon a determination of the disputed county boundary, it seems fairly evident that precisely the same county boundary issue could likewise have been resolved in an action brought by either Clallam county or by Jefferson county under RCW 36.05.010.

            This is not to say that the court's decision as between Jefferson and Clallam counties in such an action would, by and of itself, have also solved the private property title question actually placed in issue by the litigants in theFisher case.  No adjudication of a county boundary line pursuant to RCW 36.05.010, et seq., supra, could operate to impair or abrogate any vested private property rights previously acquired; it could only decide the boundary question as between the contesting counties with only prospective binding effect upon private rights.  We shall have occasion to elaborate further upon this point in response to your question (5), infra.

            However, with this qualification in mind, we see no basis for questioning the legal sufficiency of the existing statutory procedures in question to resolve any and all of the various types of county boundary line problems to which you have eluded.  The task of the court in deciding a case brought under the purview of RCW 36.05.010,et seq., supra, is to determine the true county boundary line by utilizing the legislature's description of the respective counties' common boundaries and, where necessary, such rules of statutory construction (including reference to contemporaneous practice, as in theFisher case,supra) as are appropriate to determine true legislative intent in the case of ambiguous or uncertain legislation.  In addition the court, in determining a disputed county boundary question in an action brought by one or another of the counties concerned would be able to utilize, as in any case involving disputed boundaries of real property, established rules of law relating to such matters as lost monuments, shifting water courses, and the like.

             [[Orig. Op. Page 10]]

            Of course, the court in an action initiated under RCW 36.05.010,et seq., supra, would only have authority to decide on the boundary questions actually placed before it by the pleadings actually filed by the contesting counties.  It would have no authority to go on any kind of a "fishing" expedition as to other possible areas of dispute between the same counties.  Thus, in terms of practical as against theoretical legal sufficiency of this statutory procedure, its real utility is, in large part, dependent upon the manner and the extent to which the procedure is utilized by the counties in question.

            In short, the "judicial determination" procedure provided by RCW 36.05.010,et seq., like the survey procedure provided for by RCW 36.04.400,supra, simply makes available a means which the respective counties may utilize in order to resolve the ultimate question in dispute; namely, where upon the land lies the true county boundary as described ‑ in some cases ambiguously, or unclearly, or vaguely ‑ in the statutes which set forth the legal descriptions of the counties.  It is a legally sufficient means.  However, there are practical limitations in its use, not the least of which is that this, as any, judicial procedure makes possible only a piecemeal, case by case resolution of county boundary questions.  The end result of its use can only be the establishment in each instance, of the physical location upon the land of the litigated portion of a disputed county boundary in accordance with the existing statutory description thereof.

            Question (2):

            This, and your remaining questions, assume the existence of shortcomings or limitations, either legal or practical, in the existing statutory procedures and go to the question of what the legislature may, constitutionally, do about the county boundary problem.  Initially, you ask whether the legislature might simply create a county boundary line commission, in the general manner provided for in House Bill No. 157 (introduced but not passed at the 1965 legislative session) which would be vested with the authority to perform necessary research and fact-finding investigations in order to assist the legislature, at a future date, in drafting and enacting amendatory legislation designed to clarify the existing statutes describing county boundaries.

            We have most carefully reviewed House Bill No. 157, and see no constitutional problem therewith.  Obviously, a commission such as provided for in this bill would have no  [[Orig. Op. Page 11]] law-making [[lawmaking]]powers.  It would simply be a fact-finding body, which would not, itself, be empowered to determine existing boundary line disputes but rather would merely be charged with responsibility for collecting and reporting the sort of factual information which would clearly be necessary in order to enable the legislature to intelligently draft and enact remedial legislation.

            Question (3):

            The intended consequence of a bill such as House Bill No. 157,supra, is evidently that the legislature itself, following receipt of the boundary commission's report, would enact legislation amending the existing statutes describing county boundaries in such a manner as to remove the ambiguities and aspects of vagueness and uncertainty therefrom.  To the extent that such is the sole motive and purpose of the amendatory legislation, and that no attempt were to be made to actually change established county boundaries, we believe that such legislation would be constitutionally valid and would in no way offend the prohibition contained in Article II, § 28 (18),supra, against special acts changing county boundaries.  Accord:Summit County et al. v. Rich County, 63 Utah 194, 224 Pac. 653 (1924), in which the Utah supreme court reviewed the question of the legislative power to "fix and determine" boundary lines between counties under constitutional provisions substantially similar to our own, and stated:

            "The power of the Legislature to fix or determine the boundary line between two counties, where there is an uncertainty or ambiguity in the description of that line, or where for any other reason the same cannot be definitely located on the ground, has been considered by this court in two opinions, namely, Bartin v. Sanpete county, 49 Utah, 188, 162 Pac. 611, and the opinion in the former appeal of this case.  The following legal propositions, in the opinion of the writer, are fairly deducible from the opinions of the court in those cases: (a) That the Legislature, by reason of the provisions of section 3, art. 11, of the Constitution quoted, is without authority by legislative act or otherwise to establish or locate a new or any boundary line between counties where a boundary line exists, unless the description of the boundary line is so indefinite,  [[Orig. Op. Page 12]] uncertain, or ambiguous that the line cannot be definitely determined from the description of it given, or for any other reason the line cannot be located on the ground.  (b) That the Legislature must, in attempting to establish the correct boundary line, so far as possible, establish and determine the boundary line so as to carry into effect and make certain the boundary line as it was intended to be established and fixed prior to the enactment of the correcting legislative act.  (c) That any act of the Legislature that attempts to establish a different or new boundary line without regard to the line so originally intended to be established is void as being within the inhibition of the Constitution."

            Question (4):

            You next have asked whether the legislature, instead of establishing a purely fact-finding boundary commission as in House Bill No. 157, supra, could instead vest a boundary commission with the power to hear and decide boundary disputes between counties and to conclusively locate and establish the true boundaries on a case by case basis much in the manner of a superior court under the present procedure contained in RCW 36.35.010,et seq., supra.

            The basic question of whether the legislature can create an administrative agency and vest it with quasi-judicial powers, is clearly answerable in the affirmative.  See, in general, the discussion appearing in 33 Wash. Law Rev. [[Wash. L. Rev.]]at pages 45-50 and Washington cases cited therein.  However, these authorities likewise point out certain limitations or qualifications which are applicable to the question.  Thus, in affirmatively answering the general question of whether adjudicatory powers could be vested in an administrative boundary commission, we must of necessity assume compliance with the various criteria which the courts have from time to time set forth relative to this question; e.g., the sufficiency of legislatively prescribed standards to guide the administrative agency in the performance of its functions, and the adequacy of procedural safeguards squarely in favor of the parties (in this case, the contesting counties) whose interests are to be adjudicated.

            Since you have not placed any proposed legislation before us, in bill form, regarding the boundary commission of this type  [[Orig. Op. Page 13]] (as distinguished from a purely fact-finding commission as described in House Bill No. 157, supra), we can do little more than make the foregoing general comments as to the constitutional validity of the approach.  We should add, though, one further thought.  Presumably, any legislation designed to implement this "quasi-judicial" approach to the disputed county boundary problem would include a repeal of existing "judicial determination" procedure set forth in RCW 36.05.010, et seq., supra, for the reason that, otherwise, there would be a multiplicity of forums having substantially identical powers with the resultant possibility of conflict between the determinations of the respective tribunals on the same disputed boundary questions.

            In so far as the practical utility of this approach is concerned, it must be recognized that to a large extent the limitations or deficiencies previously noted in regard to the "judicial determination" procedure provided for by RCW 36.05.010,et seq., would likewise be present were the end result of the legislation merely to be to transfer the procedures presently provided for under the existing statutes from the court to an administrative agency.  Specifically, the problem of piecemeal, case by case determination would be present.  Similarly, in the final analysis, much of the effectiveness of this approach would depend upon the nature of the use made of the procedure by the respective boards of county commissioners.

            Question (5):

            Your final question involves a particular aspect of the approach last above discussed; namely, the creation of an adjudicatory boundary commission.  The question is whether such a commission could be vested with authority to decide a boundary dispute between counties in such a manner as to preclude review in the courts by any of the counties involved or by any of the citizenry residing in the area affected who might prefer, for some reason, to live in a particular county.

            In answering this question, we believe it appropriate to subdivide our consideration of the matter into two parts:

            (1) The constitutional validity of legislation which would empower an adjudicatory boundary commission to make a final and conclusive determination, as between the contesting counties themselves, of the location upon the land of their true common boundary in accordance with the existing  [[Orig. Op. Page 14]] descriptive statutes;

            (2) The impact of such a binding and conclusive determination upon the private citizens owning property within the territory affected.

            With regard to the first question, it is a well-established principle, recently reiterated by the Washington supreme court in Board Against Discrimination v. Olympia School District No. 1, 68 Wash. Dec. 2d 242 [[68 Wn.2d 262]](1966), that the legislature may constitutionally bar a state agency or political subdivision from seeking judicial review of the decisions of an administrative agency.  In Rhyne, Municipal Law (1957), the rule is stated in § 4-2, as follows:

            "Municipal corporations are political subdivisions of the state, and in the absence of constitutional restrictions, the legislature has absolute control over the number, nature, and duration of the powers conferred, and theterritory over which they shall be exercised, and may qualify, enlarge, abridge, or entirely withdraw at its pleasure the powers of a municipal corporation."  (Emphasis supplied.)

            The only constitutional limitations in Washington state with regard to legislation affecting the territory of counties are the restrictions contained in Article II, § 28 (18),supra, and Article XI, § 3.  Both of these constitutional provisions, as we have noted, inhibit the power of the legislature tochange the established boundaries of existing counties.  However again, as in the case of the existing procedure provided for by RCW 36.05.010,et seq., supra, the jurisdictional assumption underlyingadjudicatory action by a boundary commission would be that the boundary line placed before the agency for determination is not presently established but rather is in dispute by reason of ambiguities in the descriptive legislation, or uncertainty as to the true line in consequence of loss, destruction, or removal of the geographical reference points contained in the descriptive statute.

            Before turning to the second phase of your final question, we believe that a passing reference to the recent case of County of Alpine v. County Tuolumne, 49 Cal.2d 787, 322 P.2d 449 (1958), might be appropriate.  That case was an action for a judicial determination of the boundaries between two counties in California.  In deciding the matter, the  [[Orig. Op. Page 15]] court indicated that a determination of certain factual questions by the state land commission, acting pursuant to a statute somewhat similar to RCW 36.04.400, would be conclusive as to the physical location of the disputed boundaries established pursuant to a survey.  In this ruling, the California court simply was giving effect to an express provision in the applicable statute declaring that such a determination would be conclusive, and not subject to further judicial review.

            This case, then, simply illustrates the application of the proposition above enunciated; namely, that a state legislature, in the exercise of its prerogatives as to political subdivisions such as counties, may act at its pleasure in the absence of specific or constitutional restrictions.  Contrast,The City of Kirkland v. Steen, 68 Wash. Dec. 2d 795 [[68 Wn.2d 804]](1966).

            In Washington, the constitutional restrictions relating to county boundaries inhibit legislation changing established county boundaries.  Thus, they would not preclude the legislature from vesting a boundary commission with authority to conclusively adjudicate and determine existing boundary disputes, any more than they would inhibit the legislature from resolving such disputes by amendatory legislation designed solely to clarify and make more certain existing statutory descriptions of county boundaries.  See, question (3),supra.

            As for the matter of impact upon private property rights of an adjudication by a boundary commission of the true location of a disputed county boundary, the first point to be noted is that no person, whether he be a property owner or otherwise, has any constitutional right to live in or without, or to have property located within or without, the boundaries of the particular political subdivision or municipal corporation.  A rather complete discussion and application of this principle appears in Wheeler School Dist. v. Hawley, 18 Wn.2d 37, 43, 137 P.2d 1010 (1943), wherein the court quoted from 1 Dillon, Municipal Corporations (5th ed.), p. 617, §§ 355, 357, as follows:

            "Not only may the legislature originally fix the limits of the corporation, butit may, unless specially restrained in the Constitution, subsequently annex, or authorize the annexation of, contiguous or other territory, and this  [[Orig. Op. Page 16]]without the consent, and even against the remonstrance, of the majority of the persons residing in the corporation or on the annexed territory.  And it is no constitutional objection to the exercise of this power of compulsory annexation that the property thus brought within the corporate limits will be subject to taxation to discharge a preexisting municipal indebtedness, since this is a matter which, in the absence of special constitutional restriction, belongs wholly to the legislature to determine. . . ."

            See, also,State ex rel. Board of Commissioners v. Clausen, 95 Wash. 214, 163 Pac. 744 (1917), where the general philosophy was specifically applied to counties themselves.  Therefore, it is to be seen that the legislature can, without impairing any person's constitutional rights, establish a procedure whereby disputed county boundary questions may be determined in proceedings, whether judicial or quasi-judicial, involving only the subject counties themselves without any necessity for participation therein by interested residents or property owners.  The resulting determination as to the true location of a disputed county boundary could, therefore, be made final and conclusive at the administrative level in so far as its prospective application to all parties and persons is concerned.

            However, as to property rights obtained, or obligations incurred, prior to the time of final adjudication of the disputed county boundary question, we believe that a somewhat different answer must be given.  Just as in the case of a judicial determination of disputed county boundaries under RCW 36.05.010,et seq., supra, a quasi-judicial determination made by an administrative boundary commission could not have the effect of determining private property rights obtained prior to the time of the determination even though such rights might, in the inception, have been dependent upon the question of which county the property was actually located in.  The determination of such private property rights would, rather, have to be left to private litigation between the claimants thereto, in precisely the manner that such private property rights were determined in the case of Puget Sound National Bank v. Fisher, supra.

             [[Orig. Op. Page 17]]

                        CONCLUSION

            We recognize that a good deal of what we have said in this opinion is couched in rather general terms and does not necessarily meet and answer many of the specific problems ‑ particularly, the problems regarding the property rights of individuals ‑ with regard to which a particular resolution of a given existing county boundary line dispute may have a bearing.  However, from our conversations we have surmised that your request is simply to be provided with general legal information on the points you have raised for the purpose of assistance and guidance in determining the necessity for, and the constitutional feasibility of, legislative action, in various forms, designed to cope with the present problem of ambiguous, or otherwise unclear and uncertain statutory legal descriptions of the boundaries of counties in this state.

            It is hoped that the foregoing information will, in this respect, be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JAMES C. HANKEN
Assistant Attorney General

                                                         ***   FOOTNOTES  ***

1/See, also, Article XXVII, § 2, which provided as follows:

            "All laws now in force in the Territory of Washington, which are not repugnant to this Constitution, shall remain in force until they expire by their own limitation, or are altered or repealed by the legislature:  Provided, That this section shall not be so construed as to validate any act of the legislature of Washington Territory granting shore or tide lands to any person, company or any municipal or private corporation."

            and which, thus, caused the territorial statutes defining the then existing county boundaries (now RCW 36.04.010,et seq.) to become part of state law.

2/For a reference, by names, to the territorial counties which became counties of the state of Washington in the manner above described, see, Article IV, § 5, (regarding the election of superior court judges) and Article XXII, §§ 1 and 2 (containing the original state legislative apportionment districting plan).

3/With regard to the procedure required for a transfer of territory ‑ resulting, necessarily, in a change of boundaries, see, AGO 3-64 No. 127, a copy enclosed; see, also, AGO 63-64 No. 114, copy enclosed, regarding the consolidation of existing counties.

4/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 1889 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 take therefrom by legislation enacted in 1909; and Benton county was established by legislation enacted in 1905, which carved up portions of both Yakima and Klickitat counties.

5/RCW 36.04.010 through 36.04.390.

6/See, Clark v. Dwyer, 56 Wn.2d 425, 353 P.2d 941 (60), and authorities cited therein.

7/Note, as well, RCW 36.05.030, relating to intervention by a majority of the voters residing in the disputed territory, and providing for a transfer of territory not exceeding two miles in width from one county to another at the behest of such intervenors.  It seems fairly evident, however, that this special procedure was intended by the legislature to conform with so much of Article XI, § 3, supra, as states:

            ". . . There shall be no territory stricken from any countyunless a majority of the voters living in such territory shall petition therefor. . . ."  (Emphasis supplied.)

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