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AGO 1967 No. 41 - December 28, 1967
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John J. O'Connell | 1957-1968 | Attorney General of Washington


COUNTIES - CITIES AND TOWNS - CONSTITUTIONAL AMENDMENTS - DEBT - TAXATION - INDEBTEDNESS AND TAXATION OF COMBINED CITY AND COUNTY MUNICIPAL CORPORATION.

(1) In the event of formation of a combined city and county municipal corporation, as provided for by Article XI, § 16 (Amendment 23) of the Washington constitution, such municipality would be a single municipal corporation for purposes of measuring its limitation upon indebtedness under Article VIII, § 6 (Amendment 27) of the constitution.

(2) Article VII, § 1 (Amendment 14) of the Washington constitution would require that taxes levied by such a combined city and county municipal corporation ". . . be uniform upon the same class of property within the territorial limits of . . ." such combined county and city.     

(3) The legislature, as part of an act providing for the formation of a combined city and county municipal corporation, could authorize the formation of subsidiary units which would be analogous to the community municipal corporations authorized by chapter 73, Laws of 1967.

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                                                               December 28, 1967

Honorable Slade Gorton
State Representative
1710 IBM Building
Seattle, Washington

                                                                                                                 Cite as:  AGO 1967 No. 41

Dear Sir:

            By letter previously acknowledged you have requested our opinion on three questions regarding the implementation of Article XI, § 16 (Amendment 23) of the Washington constitution, which relates to the formation of combined city and county governments.

            We paraphrase your three questions as follows:

            (1) Would a combined city and county municipal corporation be a single municipal corporation for purposes of measuring its limitation upon indebtedness under Article VIII, § 6 (Amendment 27) of the constitution?

            (2) Would Article VII, § 1 (Amendment 14) of the constitution require that the taxes levied by a combined city and county municipal corporation ". . . be uniform upon the same class of property within the territorial limits of . . ." such combined city and county?

             [[Orig. Op. Page 2]]

            (3) May the legislature, as part of an act providing for the formation of combined city and county municipal corporations, authorize the formation of subsidiary units which would be analogous to the community municipal corporations authorized by chapter 73, Laws of 1967?

            We answer all three questions in the affirmative, for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Amendment 23, which added a new section to Article XI of our state constitution, was approved by the people at the November, 1948, state general election.  Though this provision is somewhat lengthy, we believe it would be well, because of general unfamiliarity with its contents on the part of most people, to set it forth in full at the outset of this opinion.  The amendment reads as follows:

            "The legislature shall, by general law, provide for the formation of combined city and county municipal corporations, and for the manner of determining the territorial limits thereof, each of which shall be known as a 'city and county,' and, when organized, shall contain a population of at least three hundred thousand (300,000) inhabitants.  No such city and county shall be formed except by a majority vote of the qualified electors of the area proposed to be included therein and also by a majority vote of the qualified electors of the remainder of that county from which such area is to be taken.  Any such city and county shall be permitted to frame a charter for its own government, and amend the same, in the manner provided for cities by section 10 of this article:  Provided, however, That the first charter of such city and county shall be framed and adopted in a manner to be specified in the general law authorizing the formation of such corporations:  Provided further, That every such charter shall designate the respective officers of such city and county who shall perform the duties imposed by law upon county officers.  Every such city and county shall have and enjoy all rights, powers and privileges asserted in its charter, not inconsistent with general laws, and in addition thereto, such rights, powers and privileges as may be granted to it, or possessed and enjoyed by cities and counties of like population separately organized.

             [[Orig. Op. Page 3]]

            "No county or county government existing outside the territorial limits of such county and city shall exercise any police, taxation or other powers within the territorial limits of such county and city, but all such powers shall be exercised by the city and county and the officers thereof, subject to such constitutional provisions and general laws as apply to either cities or counties:  Provided, That the provisions of sections 2, 3, 4, 5, 6, 7, and 8 of this article shall not apply to any such city and county:  Provided further, That the salary of any elective or appointive officer of a city and county shall not be changed after his election or appointment or during his term of office; nor shall the term of any such officer be extended beyond the period for which he is elected or appointed.  In case an existing county is divided in the formation of a city and county, such city and county shall be liable for a just proportion of the existing debts or liabilities of the former county, and shall account for and pay the county remaining a just proportion of the value of any real estate or other property owned by the former county and taken over by the county and city, the method of determining such just proportion to be prescribed by general law, but such division shall not affect the rights of creditors.  The officers of a city and county, their compensation, qualifications, term of office and manner of election or appointment shall be as provided for in its charter, subject to general laws and applicable constitutional provision."

            Although this amendment was approved by the voters almost twenty years ago, the legislature has not yet implemented it by the enactment of general legislation.  Presumably, this is because the population requirement (i.e., 300,000 inhabitants) of a combined city and county government as set forth in the amendment has thus far rendered it of rather limited practical utility.1/

             [[Orig. Op. Page 4]]

            However, in consequence of this absence of any previous implementation or use of the amendment, there have been no interpretative decisions by our supreme court with respect to its provisions; likewise, it does not appear that the amendment has ever been the subject of a prior opinion of this office.

            With these introductory remarks as well as the text of the constitutional amendment itself in mind, we may turn now to the three questions which you have asked.

            Question (1):

            Your first question is as to the constitutional debt limitation which would govern a combined city and county municipal corporation formed pursuant to the amendment.  The applicable constitutional provision with respect to municipal indebtedness is Article VIII, § 6 (Amendment 27), which provides as follows:

            "No county, city, town, school district, or other municipal corporation shall for any purpose become indebted in any manner to an amount exceeding one and one half percentum of the taxable property in such county, city, town, school district, or other municipal corporation, without the assent of three fifths of the voters therein voting at an election to be held for that purpose, nor in cases requiring such assent shall the total indebtedness at any time exceed five percentum on the value of the taxable property therein, to be ascertained by the last assessment for state and county purposes previous to the incurring of such indebtedness, except that in incorporated cities the assessment shall be taken from the last assessment for city purposes:Provided, That no part of the indebtedness allowed in this section shall be incurred for any purpose other than strictly county, city, town, school district, or other municipal purposes: Provided further, That (a) any city or town, with such assent, may be allowed to become indebted to a larger amount, but not exceeding five percentum additional for supplying such city or town with water, artificial light, and sewers, when the works for supplying such water, light, and sewers shall be owned and controlled by the municipality and (b) any school district with such assent, may be allowed to become indebted to a larger amount but not exceeding five percentum additional for capital outlays."

            If a combined city and county municipal corporation must be regarded as a single municipal corporation no longer either city  [[Orig. Op. Page 5]] alone or county alone then it follows that it would have but a single municipality's constitutional debt limitation.  This would necessarily follow even though the territory occupied by the new municipality was previously occupied by a county or part thereof, and one or more cities and towns, each of which had in its prior existence its own debt limit (or, conversely stated, debt capacity).

            We can see no alternative to so characterizing a combined city and county municipal corporation and thus reaching this conclusion.  In the first place, every reference in the constitutional amendment to this type of municipal body is stated in the singular.  Furthermore, with respect to the powers of a combined city and county municipal corporation and its relation to the remainder, if any, of the county in which it is located the amendment says:

            ". . . Every such city and county shall have and enjoy all rights, powers and privileges asserted in its charter, not inconsistent with general laws, and in addition thereto, such rights, powers and privileges as may be granted to it, or possessed and enjoyed by cities and counties of like population separately organized.

            "No county or county government existing outside the territorial limits of such county and city shall exercise any police, taxation or other powers within the territorial limits of such county and city, but all such powers shall be exercised by the city and county and the officers thereof, subject to such constitutional provisions and general laws as apply to either cities or counties: . . ."

            Thus, once a combined city and county municipal corporation is formed, it, and it alone, exercises all of the governmental powers and functions within its territorial limits which, prior to formation, were exercised by the county and the city or cities which covered or included the same territorial expanse.2/   Accordingly, the powers exercised by a combined city and county municipal corporation, even though they be powers which were previously exercised within the same territory by multiplicity  [[Orig. Op. Page 6]] of municipalities must be regarded as the powers of but a single municipal corporation.  And likewise, as we have said, the combined county and city municipal corporation must be regarded as having but a single debt limitation.  We repeat, for illustrative purposes, the crucial language of Article VIII, § 6 (Amendment 27),supra, now inserting by substitution a specific reference to this new type of municipality:

            "No . . . [combined city and county] municipal corporation shall for any purpose become indebted in any manner to an amount exceeding one and one half percentum of the taxable property in such . . . [combined city and county] municipal corporation, without the assent of three fifths of the voters therein voting at an election to be held for that purpose, . . ."3/

             Question (2):

            Our foregoing determination that a combined city and county municipal corporation is to be regarded as but a single municipality is also applicable to your second question.  By this question you have asked whether the taxes levied by a  [[Orig. Op. Page 7]] combined city and county municipal corporation would have to be ". . . uniform upon the same class of property within the territorial limits of . . ." such combined city and county municipality.  The quoted language in our paraphrasing of your question is, of course, taken from Article VII, § 1 (Amendment 14) of our constitution.  The complete sentence containing this quoted phrase reads as follows:

            "All taxes shall be uniform upon the same class of property within the territorial limits of theauthority levying the tax and shall be levied and collected for public purposes only."  (Emphasis supplied)

            Since a combined city and county municipal corporation is but a single municipality, exercising within its territory the powers (including powers of taxation) previously exercised by the county and the pre existing city or cities, it follows that the combined city and county must be regarded as but a single taxing authority.  Thus, the constitutional requirement of uniformity would apply to the extent of requiring that all taxes levied by and upon the same class of property within its territorial limits be uniform.

            Question (3):

            Lastly, you have asked whether the legislature, in implementing Article XI, § 16 (Amendment 23),supra, may provide for the organization of subsidiary municipal units within a combined city and county municipal corporation which would be analogous to the community municipal corporations authorized by chapter 73, Laws of 1967.

            Briefly, the 1967 act to which you have referred applies in the following three situations:

            (1) Whenever cities are consolidated;

            (2) Whenever cities of the third or fourth class are annexed to a first class city; and

            (3) Whenever unincorporated territory is annexed to any existing city.  See, § 1, chapter 73, Laws of 1967.

            At the time of the election on the question of consolidation or annexation, a vote is also to take place, either as part of the same proposition or as a separate proposition, on the question of whether (in the case of consolidation) a community municipal corporation is to be created covering the territory of the least populous of the two cities, or (in the case of annexation of a third or fourth class city by a first class city) a community municipal corporation is to be formed covering the territory of the annexed third or fourth class city, or (in the case of annexation of unincorporated areas) whether a  [[Orig. Op. Page 8]] community municipal corporation is to be formed covering the area of the annexed unincorporated territory.  Initially, each community municipal corporation thus formed is to be governed by a community council which, in the first two categories of cases, will be comprised of the governing body of the former city or town which has been consolidated or annexed; in the case of annexation of unincorporated territory, the community municipal corporation council, if such a corporation is established, will consist of five members who are to be elected at the time of the annexation election.  See, in general, §§ 2, and 7-14 of the act.

            The powers of a community municipal corporation council are spelled out in §§ 4 and 5 of the act which provide, respectively, as follows:

            "The adoption, approval, enactment, amendment, granting or authorization by the city council or commission of any ordinance or resolution applying to land, buildings or structures within any community council corporation shall become effective within such community municipal corporation either on approval by the community council, or by failure of the community council to disapprove within sixty days of final enactment, with respect to the following:

            "(1) Comprehensive plan;

            "(2) Zoning ordinance;

            "(3) Conditional use permit, special exception or variance;

            "(4) Subdivision ordinance;

            "(5) Subdivision plat;

            "(6) Planned unit development.

            "Disapproval by the community council shall not affect the application of any ordinance or resolution affecting areas outside the community municipal corporation.

            "Upon annexation or consolidation, pending the effective enactment or amendment of a zoning or land use control ordinance, without disapproval of the community municipal corporation, affecting land, buildings, or structures within a community municipal corporation, the zoning ordinance, resolution or land use controls applicable to  [[Orig. Op. Page 9]] the annexed or consolidated area, prior to the annexation or consolidation, shall remain in effect within the community municipal corporation and be enforced by the city to which the area is annexed or consolidated.

            "Whenever the comprehensive plan of the city, insofar as it affects the area of the community municipal corporation has been submitted as part of an annexation proposition and approved by the voters of the area proposed for annexation pursuant to chapter 88, Laws of 1965 extraordinary session, such action shall have the same force and effect as approval by the community council of the comprehensive plan, zoning ordinance and subdivision ordinance."  [Section 4]

            "In addition to powers and duties relating to approval of zoning regulations and restrictions as set forth in section 4 of this 1967 amendatory act, a community municipal corporation acting through its community council may:

            "(1) Make recommendations concerning any proposed comprehensive plan or other proposal which directly or indirectly affects the use of property or land within the service area;

            "(2) Provide a forum for consideration of the conservation, improvement or development of property or land within the service area; and

            "(3) Advise, consult, and cooperate with the legislative authority of the city on any local matters directly or indirectly affecting the service area."  [Section 5]

            It thus appears that the only real power of a community council is the power to veto the application within its community municipal corporation service area of any zoning or similar land use control ordinance or restriction which has been adopted by the governing body of the parent city or town.  Beyond this power, the only authority of a community council appears to be to fulfill the advisory function described in § 5, supra.

            Thus, a community municipal corporation, as contemplated by chapter 73, Laws of 1967, is not a separate municipal corporation, taxing district, or a political subdivision; rather, it is simply a limited purpose service area of a city covering territory annexed to, or consolidated with, a pre existing larger city.  We find nothing in the provisions of Article XI,  [[Orig. Op. Page 10]] § 16 (Amendment 23), supra, which would prevent the legislature from taking this same essential approach with respect to the creation of similar service areas headed by similarly empowered councils with respect to logically component parts of a combined city and county municipal corporation formed pursuant to general laws enacted to implement the provisions of this constitutional provision.  Therefore, limiting ourselves to this analogy only, we may answer your third question, as paraphrased, in the affirmative.

            We trust that the foregoing will be of assistance to you.  If you should in the future desire any further advice with respect to the provision of any specific bill which your committee may have under consideration with respect to this subject, please advise.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/According to our most recent (1960) federal census, only King county, among the 39 counties in this state, had a total population in excess of 300,000 inhabitants if we exclude from Pierce county the military personnel residing at Fort Lewis.  We note upon review of the legislative journals that a bill denominated House Bill 239, which was designed to implement the constitutional amendment, was introduced at the 1949 legislative session.  This bill would simply have permitted a city of more than 300,000 inhabitants to form a combined city-county government and thereby exclude itself from the remainder of the county.  The bill appears to have died in the House Rules Committee, and no similar bill has since been introduced.

2/Obviously, the manner of transferring these powers and responsibilities from the previous county and city governments to the combined county and city government is a subject which would have to be covered in some detail in any implementing legislation.

3/Though this issue is somewhat beyond the scope of your question, we do believe it appropriate to hereby express the opinion that although a combined city and county municipal corporation would not have the combined debt limitations of the pre existing county and cities, its constitutional debt limitation would be measured on the same basis as is the present debt limitation of a city to the extent that the combined city and county municipal corporation would be entitled, with consent of the voters, to take advantage of the special provisions contained in the second proviso of Article VIII, § 6 (Amendment 27), supra;´e., the proviso which states,

            ". . . That (a) any city or town, with such assent, may be allowed to become indebted to a larger amount, but not exceeding five percentum additional for supplying such city or town with water, artificial light, and sewers, when the works for supplying such water, light, and sewers shall be owned and controlled by the municipality . . ."

            Our basis for this conclusion is, again, the proposition enunciated in Amendment 23 that every combined city and county municipal corporation,

            ". . . shall have. . . such rights, powers and privileges as may be granted to it, or possessed and enjoyed by cities and counties of like population separately organized."

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