POLICE POWER OF MUNICIPAL CORPORATIONS

POLICE POWER OF MUNICIPAL CORPORATIONS

A municipal corporation may, by legislation, forbid the use of high-powered rifles in any area or areas within its boundaries in which such use would endanger the lives or property of its citizens until there is general conflicting state legislation upon the subject.

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                                                                October 26, 1955

Honorable Maloy Sensney
Prosecuting Attorney of Benton County
Fisk Building
Prosser, Washington                                                                                                              Cite as:  AGO 55-57 No. 148

Attention:  Herbert H. Davis, Deputy Prosecutor

Dear Sir:

            Your letter, which has been previously acknowledged, requests our opinion as to whether or not your County Commissioners could prevent the hunting of deer with high-powered rifles within the county because of danger to life and property.  You state in this connection that this season is the first time that any portion of Benton County has been opened by the State Game Commission to deer hunting.

            It is our conclusion that the County Commissioners can, by appropriate resolution, forbid the use of high-powered rifles within certain areas, at least, of Benton County.

                                                                     ANALYSIS

            The Washington State Constitution, Article XI, section 11, provides as follows:

             [[Orig. Op. Page 2]]

            "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."  (Emphasis ours)

            Generally, under the above constitutional provision, it has been held that a municipal corporation may exercise its police power for the protection of its citizens unless the state has preempted the field by statutory enactment.  We think that no useful purpose would be served by exploring the question as to whether or not the state, by the enactment of its Game Code, has so legislated on the subject of hunting of deer that there is no room left for county legislation on the subject.  This is for the reason that we believe that your problem can best be answered by another approach.

            Certainly, under the above constitutional provision, a municipal corporation may prevent the firing of high-powered rifles within whatever portion of its boundaries that such firing would endanger the lives or property of its citizens, unless of course the state had preempted the field by legislation upon the subject.  We are not aware of any specific statute or regulation under general statute upon the subject of the use of high-powered rifles.  Thus, it seems clear that inasmuch as there is no general law upon the subject, the county may legislate upon it, so long as the county legislation is reasonably calculated to achieve the result sought to be achieved by it, namely, the protection of the lives and property of its citizens.

            While, of course, the County Commissioners are better informed than we on what area meets the above test, it would seem clear that it might well be arbitrary and capricious if the Commissioners should make the suggested resolution applicable to thinly populated areas and conversely, it might be entirely reasonable if such suggested resolution were applicable to more congested areas.

            Therefore, as above indicated, it is our opinion that the County Commissioners of Benton County may, by resolution, prevent the use of high-powered rifles in any area within the county where such use could be reasonably said to endanger the lives or property of its citizens.

             [[Orig. Op. Page 3]]

            It is obvious that if the state should in the future legislate generally upon the subject here involved and thus preempt the field, the county legislation would, at least in those instances where it was in conflict with the state legislation, fail.

            We sincerely hope that the above will be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General

J. D. THOMAS, JR.
Assistant Attorney General