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AGO 1958 No. 205 - June 23, 1958
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John J. O'Connell | 1957-1968 | Attorney General of Washington





(1) It is permissible, but not mandatory for the county commissioners of a first class county to appoint a county purchasing agent, but his authority is limited.

(2) The several boards of county commissioners are authorized to refuse approval of only those claims which are not legally chargeable against the county.

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                                                                   June 23, 1958

Honorable Arnold R. Zempel
Prosecuting Attorney
Snohomish County Court House
Everett, Washington                                                                                        Cite as:  AGO 57-58 No. 205

Dear Sir:

            In a recent letter you requested the opinion of this office on several questions, which we paraphrase as follows:

            (1) Is it mandatory for the board of county commissioners of a first class county to appoint a purchasing agent?

            (2) If it is not mandatory, may the board of county commissioners of a first class county nevertheless appoint a purchasing agent?

            (3) What, if any, authority does the board of county commissioners of a first class county have to refuse to approve the payment of a voucher drawn upon  [[Orig. Op. Page 2]] the budget of an elected county officer when the voucher is for an amount less than $100.00 and the commissioners know that the commodity or service covered by the voucher could have been purchased at substantially less cost?

            We answer question 1 in the negative and question 2 in the affirmative.  The answer to question 3 is contained in the analysis.


            The only mandatory provision relative to the employment of county purchasing agents is contained in chapter 61, Laws of 1945.  That chapter has been codified as RCW 36.32.240 through 36.32.270, but there is a variance between the language of the session law and that of the codification; and the session law language must, pursuant to the terms of RCW 1.04.020, control.

            Chapter 61, Laws of 1945, is entitled:

            "AN ACT authorizing County Commissioners of Class A counties to purchase supplies and equipment and contract for public works for all county departments, requiring said purchases and contracts to be let after calling for bids and publishing of specifications, authorizing the appointment of a county purchasing agent and for other purposes."

            Section 1 of that act provides in part that:

            "In any Class A county, the Board of County Commissioners shall contract on a competitive basis for all public works and purchase on a competitive basis all supplies, materials, and equipment, . . ."

            Section 2 states that:

            "No contract or purchase shall be entered into or made by any Board of County Commissioners . . . of such county until after bids have been submitted . . ." (Emphasis supplied)

            Section 3 contains the language which is most relevant to this discussion.  It reads in part as follows:

            "The Board of County Commissioners shall appoint a county purchasing agent . . ."

            In codifying § 3 of the act, the following language was used in RCW 36.32.260:

            "The board of county commissioners in class A and first class counties  [[Orig. Op. Page 3]] shall appoint a county purchasing agent . . ."

            It is apparent that the codifier added the words "first class counties" to RCW 36.32.260,supra, because of the language found in the title to chapter 33, Laws of 1949, which reads as follows:

            "AN ACT authorizing County Commissioners of certain classes of counties to purchase supplies and equipment and contract for public works for all county departments on a competitive basis and extending the provisions of chapter 61, Laws of 1945 . . . to First Class counties by amending section 1, chapter 61, Laws of 1945 . . ."  (Emphasis Supplied)

            Chapter 33, Laws of 1949, contained a single section which amended § 1 of chapter 61, Laws of 1945, extending that section to first class counties as well as class A counties.

            From a reading of the act without reference to its title, it is clear and unambiguous, and purports to do no more than extend the terms of § 1 of chapter 61, Laws of 1945 to embrace first class as well as class A counties.  It is only in the title that language appears which could be construed to exhibit a legislative intent thatall of the provisions of chapter 61 were to be extended to cover first class cities.  The question then is whether the effect of an unambiguous act can be extended by the terms of its title, which contains a broader statement of purpose than the act itself purports to accomplish.  That question is answered by a case in point in this jurisdiction.

            Tsutakawa v. Kumamoto, 53 Wash. 231, 101 Pac. 869, 102 Pac. 766 (1909), considered the construction of an act entitled: "AN ACT relating to liens forlabor performed, material, provisions and supplies furnished . . ." (§ 1, chapter 24, Laws of 1893, as amended by chapter 116, Laws of 1905).  The body of the act provided only for a lien for labor andmaterials.

            The court held that the statute must be restricted in its scope to labor and materials and could not be broadened by the title, stating at p. 235:

            ". . . We are bound by the act and cannot supply an omission in it by reference to . . . the title.  The legislature cannot write an enacting clause . . . and  [[Orig. Op. Page 4]] call it a statute.  While a title must be as broad as that part of the act which declares its subject-matter, the law will not be extended in its operation to meet the words or terms employed in the enacting clause if it be broader than the body of the act, . . ."

            Even if chapter 33, Laws of 1949, were capable of a construction indicating an intent to amend chapter 61, Laws of 1945, we would have to conclude that it did not have this effect, for a different reason.

            By Article II, § 37, of the Washington State Constitution, it is required that an amended section be set forth in full.  Section 3 was neither referred to nor set forth in the 1949 amendment.

            InNaccarato v. Sullivan, 46 Wn. (2d) 67, 278 P. (2d) 641 (1955), our supreme court set out in detail certain instances in which Art. II, § 37, is not violated even though an amended section is not set forth in full:

            ". . . (1)complete acts which repeal prior acts or sections thereof on thesame subject; (2) complete acts which adopt by reference provisions of prior acts; (3)complete acts which supplement prior acts or sections thereof without repealing them; (4)complete acts which incidentally or impliedly amend prior acts."  (p. 75) (Emphasis supplied.)

            It is immediately apparent that chapter 33, Laws of 1949, is not, nor does it purport to be, acomplete act on the same subject as chapter 61, Laws of 1945.

            Quoting from the court's decision in the case of Rourke v. Dept. Labor & Ind., 41 Wn. (2d) 310, 249 P. (2d) 236 (1952), which handled a similar question:

            ". . . It is not complete in itself in every detail.  A person of ordinary intelligence can well mistake its meaning, and we cannot know what the legislature intended, without referring to another act or statute. . . ." (p. 313)

            InGruen v. State Tax Commission, 35 Wn. (2d) 1, 211 P. (2d) 651 (1949), the court said that as a general rule, if an act is not complete in itself but is clearly amendatory of a former statute, it falls within the inhibition of Article II, § 37, of the Washington State Constitution, prohibiting the amendment of acts by reference to the title without setting out the act in full; and it is immaterial  [[Orig. Op. Page 5]] whether or not it purports on its face to be amendatory or an independent act.

            In construing a statute, every reasonable intendment will be indulged in favor of the construction that is in conformity with the provisions of the constitution.  State v. Hanlen, 193 Wash. 494, 76 P. (2d) 316 (1938).

            InGruen v. State Tax Commission, supra, the court quoted with approval fromState ex rel. Campbell v. Case, 182 Wash. 334, 47 P. (2d) 24 (1935) as follows:

            "'It is a well settled rule that, where a statute is open to two constructions, one of which will render it constitutional, and the other unconstitutional, the former construction, and not the latter, is to be adopted. . . .'"  (p. 6)

            In view of the above rules, it is our conclusion that to construe chapter 33, Laws of 1949, as attempting an amendment of all the provisions of chapter 61, Laws of 1945, would be to render it unconstitutional.  We are therefore compelled to indulge in a presumption of constitutionality of the act by concluding that its effect is restricted to an amendment of § 1 only.

            Since § 3, chapter 61, Laws of 1945, makes no specific reference to any classification of counties, there is some ambiguity as to its application.  The act's title may be considered as a means of ascertaining legislative intent when, because of ambiguity in the language, that intent cannot be gathered from the body of the act.  Ayers v. Tacoma, 6 Wn. (2d) 545, 108 P. (2d) 348 (1940).

            Applying this rule, we feel that the title of the act clearly reveals a legislative intent that chapter 61, Laws of 1945, be restricted to class A counties, with the exception of § 1, as amended by chapter 33, Laws of 1949; and it is therefore not mandatory for the board of county commissioners of a first class county to appoint a county purchasing agent.

            With reference to your second question, we direct your attention to an opinion of this office to the prosecuting attorney of Whatcom county, dated February 9, 1939, in which we cited the case of State ex rel. Whitney v. Friars et al., 10 Wash. 348 (1894), and held that on the basis of that decision the county commissioners of any county could lawfully appoint a purchasing agent to purchase, within budget limitations, materials and supplies for all county offices.  In that case the court said, on page 352:

             [[Orig. Op. Page 6]]

            ". . . The county commissioners are constituted by the law the guardians of the county and its business managers, and while the power to appoint an agent is not expressly granted, the power which they do have under the law necessarily carries with it all the powers necessary to the proper exercise of the power granted."

            The year following the issuance of the above Attorney General's opinion, the supreme court had occasion to pass on this question in the case ofState ex rel. Taylor v. The Superior Court for King County, 2 Wn. (2d) 575, 98 P. (2d) 985 (1940).  In that case, the court, though not overruling the prior decision, did hold that the board of county commissioners could not appoint a purchasing agent whose powers extended to the purchase of supplies for other county elective officials.  To the extent that the Attorney General's opinion of 1939, supra, is inconsistent with the Taylor decision, it is inoperative.  Of course, the effect as to class A counties of the decision in theTaylor case has been restricted by the enactment of chapter 61, Laws of 1945; but as to other than class A counties, we believe that both theTaylor andWhitney cases are applicable and controlling.

            With respect to Question Three, RCW 36.32.120, dealing with the general powers afforded the county commissioners, provides in part:

            "The several boards of county commissioners shall:

            "(5) Allow all accounts legally chargeable against the county not otherwise provided for, and audit the accounts of all officers having the care, management, collection, or disbursement of any money belonging to the county or appropriated to its benefit;

            "(6) Have the care of the county property and the management of the county funds and business . . ."

            By this statute the county commissioners are constituted the "business agents" of the county and given the care of county funds.  Implicit in the language of the above statute, is the authority to review accounts against the county for the purpose of determining whether they are "legally chargeable".

            It follows that the county commissioners have the immediate power to reject a claim which they deem to be not "legally chargeable" to the county.  This does not mean that such determination by the county commissioners is final.  The language directing payment of accounts is mandatory, and it would therefore appear that where an account is "legally chargeable," as a matter of law, itmust be paid.

             [[Orig. Op. Page 7]]

            This office so held in an earlier opinion to the prosecuting attorney of Pierce county, dated December 16, 1937, in which we cited the case ofState ex rel. Manning v. Major, 50 Wash. 355, 97 Pac. 249 (1908).  In that case, the court held that where an item was necessary to the discharge of the county surveyor's statutory duties, the board of county commissioners was without discretion to refuse procurement of the item.

            It is our conclusion, reading State ex rel. Taylor v. Superior Court for King County supra, and theManning case, supra, together, that county elective officials are authorized to purchase the necessary supplies essential to the performance of their statutory duties, and that such claims are required to be paid.  As to the reasonableness of such purchases, that is a matter for the discretion of the elective officials involved.  If the actions of such officers in making a purchase were purely arbitrary and capricious and not, therefore, a sound exercise of discretion, then the account would not be "legally chargeable" to the county within the meaning of RCW 36.32.120 (5), and the board of county commissioners would, in such event, be justified in refusing to allow the claim.

            We hope the foregoing satisfactorily answers your questions.

Very truly yours,

Attorney General

Assistant Attorney General

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